The doctrine of fugitive disentitlement bars a fugitive from seeking relief in the judicial system whose authority he or she evades, i.e. one cannot flee the country and evade a court order and simultaneously seek the court’s protection.

Justice Virginia Long (now retired from the Supreme Court and Counsel at this firm) set forth the standards for the application of the doctrine in Matsumoto v. Matsumoto, 171 N.J. 11, 120 (2002):

[T]he party against whom the doctrine is to be invoked must be a fugitive in a civil or criminal proceedings; his or her fugitive status must have a significant connection to the issues with respect to which the doctrine is sought to be invoked; invocation of the doctrine must be necessary to enforce the judgment of the court or to avoid prejudice to the other party caused by the adversary’s fugitive status; and invocation of the doctrine cannot be an excessive response. Id. at 129.

In the realm of family law, this doctrine poses a unique question to Courts who are required to balance (1) their power to enforce their orders against those who have evaded them, against (2) a fugitive’s parental rights, duty of support and, most importantly, the best interest of the child(ren) whose parent is evading the law.

Recently, the Appellate Division in Matison v. Lisnyansky, held that “[a] father may not obtain the protection of our judicial system to appeal a palimony and custody default judgment while he remains outside of the country avoiding arrest on an outstanding child-support bench warrant.”

There, the defendant father, Mark Lisyansky and plaintiff mother Yvietta Matison, had twin children in 2004. Sometime thereafter, defendant came to the United States and purchased an approximately $1.9 million dollar home in Franklin Lakes, which was substantially renovated. In March 2006, the plaintiff and the parties’ two children then came to the United States and moved into the Franklin Lakes home. Defendant also provided a nanny, interior decorator and secretary. Defendant then returned to Europe to conduct business and plaintiff and the children remained in Franklin Lakes until defendant sold the home. Thereafter, plaintiff and the children moved to Tenafly and defendant continued to provide financial support from abroad.

This arrangement continued until 2012, when defendant stopped supporting the children. Plaintiff obtained a court order for child support (the parties were never married so this was not a divorce proceeding), which stated that, “[a] writ of Ne Exeat [which in Latin means, ‘that he not depart’] shall remain against defendant” and a bond or alternate security was required to be posted. The order also stated that “[t]he Warrant for defendant’s arrest shall remain outstanding until he satisfies his support arrears and complies with the other terms of this Order.”


The matter was set for trial and defendant discharged his attorney and failed to appear. The Court entered a default against defendant and held a four-day hearing on plaintiff’s claims, ultimately entering a default judgment on May 1, 2013. One-day before the one-year limit set forth in R. 4:50-2, defendant filed a motion to vacate the default judgment (through counsel as he could not appear due to the still outstanding bench warrant), which was denied. Defendant then appealed this Order.

The Appellate Division noted that defendant has been avoiding his court-ordered responsibility to support his two children, while at the same time, he sought to appeal the issues of palimony and custody resulting from the same litigation.

In its opinion, the Appellate Court acknowledged that, as set forth in Matsumoto, “whatever limits the fugitive disentitlement doctrine might impose in other settings would not be applicable in a custody case in which no enforcement issue exists”. Thus, if child custody is a substantial issue the doctrine would not apply. However, the Court concluded here that custody was not an actually an issue. The Appellate Division noted that, curiously, defendant did not raise custody as an issue throughout the litigation, raising it only for the first time in his motion to vacate the default judgment (almost a year after its entry). Further, Defendant did not offer a custodial alternative and the Court recognized that Defendant had been afforded contact with his children through supervised parenting time that was to be arranged between the parties.

Thus, since custody was clearly not an issue in the underlying litigation, the Court declined “to afford [defendant] the protection of the court while he flaunts the court’s authority from overseas.” Should custody reemerge in this matter, same is always modifiable upon a showing of changed circumstances.

Thus, the Court’s ultimate decision in this case balanced the fugitive disentitlement doctrine in favor of defendant’s facetious argument for custody. Though it might seem obvious that a person cannot flee our county and then seek the protections of the Court, that may not always be the case in family law matters. With today’s ever mobile society, it will be interesting to see in what instances, if any, a fugitive’s parental rights and the best interests of the child may outweigh the doctrine of fugitive disentitlement.

Regular readers of this blog know that we were involved in the landmark palimony case, Maeker v. Ross, which was recently decided by the New Jersey Supreme Court.  We previously blogged about our win in the Appellate Division.

Unfortunately, the Supreme Court reversed, holding that the Legislature could not have intended for the statute to apply retroactively to existing contracts.  This is despite the fact that the statute clearly said that “no action shall be brought” unless the palimony agreement was in writing and the fact that the preamble to the statute specifically cited Supreme Court cases that the statute was meant to overturn.

In perhaps a continuation of the battle royale between the Supreme Court and the Legislature on this issue, on October 27, 2014, Senators Scutari and Cardinale introduced S2553 which made clear that the 2010 statute was intended to apply retroactively.  The synopsis of the statute is as follows:

Makes retroactive current law requiring “palimony”  agreements to be in writing; provides that pre-existing palimony agreements are unenforceable unless put into writing within one year of enactment of this bill.

The statement after the language of the proposed statute is even more clear:

P.L.2009, c.311, enacted January 18, 2010, required that any “palimony” agreement must be in writing to be enforceable. The enactment amended R.S.25:1-5 to provide that a promise by one party to a non-marital personal relationship to provide support or other consideration to the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and was made with the independent advice of counsel for both parties.

In Maeker v. Ross, 2014 N.J. LEXIS 910, decided September 25, 33 2014, the New Jersey Supreme Court held that the Legislature did not intend the enactment to retroactively apply to palimony agreements made prior to the effective date of the enactment, and that such pre-existing palimony agreements are enforceable even if they were never put into writing. This bill would address the court’s decision by clarifying that P.L.2009, c.311 is intended to be retroactive. This bill provides that palimony agreements made prior to January 18, 2010, the effective date of P.L.2009, c.311, would be enforceable only if they are brought into compliance with P.L.2009,c.311 within one year of the effective date of this bill.

In essence, the concept of the ability to cure – that is, to get a writing put into place to confirm the existence of the palimony agreement – would be codified.

While this is a small measure of vindication for our position, who knows if it will be passed.  Stay tuned.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

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Regular readers of this blog know that we were the winning attorneys in the Appellate Division in the landmark palimony case, Maeker v. Ross, as we previously blogged on that decision.  As many of you know, the New Jersey Supreme Court granted Certification last year.  Both the Family Law Section of the New Jersey State Bar Association and the New Jersey Chapter of the American Academy of Matrimonial Attorneys, filed amicus briefs in the matter.

The case is scheduled to be argued before New Jersey Supreme Court on May 5, 2014.  Once again, I will be arguing on behalf of Mr. Ross.  In addition to plaintiff’s counsel, representatives for both amici will be arguing, as well.  Stay tuned for the decision.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

Connect with Eric: Twitter_64 Linkedin

As frequent readers of this blog may know, earlier this year, we were the winning attorneys in the landmark palimony case, Maeker v. Ross.  My post on that case on this blog was entitled Is Palimomy In New Jersey Over As We Knew It?  Since the Supreme Court recently granted Certification, we will see what they ultimately have to say about this issue some time next year.

In the mean time, a lot has been written about the unreported trial court opinion in the case of Joiner v. Orman  recently decided by Judge Rosenberg in Essex County, suggesting that palimony is alive and well, especially the argument that partial performance is a bar to the statute of frauds (the statute requiring palimony agreements to be in writing was included as an amendment to the Statute of Frauds).  While the palimony opponents could be worried about this decision, it is not precedential (i.e. it doesn’t have to be followed) both because it is a trial court opinion and unreported.  More importantly, the facts of this case seemingly dictated that an equitable result occur.  Some of the more critical facts which were largely not in dispute, are as follows:

  • The parties started dating in 1972 and began cohabiting shortly thereafter
  • During their relationship of approximately 39 years, they celebrated June 11, 1973 as their anniversary
  • The parties maintained a marriage type relationship, holding each other out as husband and wife, raised 4 children and resided together as a family.
  • The parties filed joint tax returns
  • The parties maintained joint accounts
  • The parties purchased real estate together
  • The plaintiff went by the name Joiner-Orman
  • The defendant, who was Gordon on Sesame Street, dedicated his memoir, “To my wife, Sharon Joiner-Orman, thanks for providing this story and my life with true meaning.” A personal copy of the book also bears an inscription, dated June 21, 2006, which states, “To Sharon, thank you for being my wife, my partner, the love of my life. Always and Forever, Roscoe.”
  • Plaintiff provided companionship and social support, took care of the household and raised the parties’ four children.
  • Due in large part to Defendant’s financial success, and Plaintiff’s reliance thereon, Plaintiff never attended college or pursued a career of her own.
  • Plaintiff asserts that it was always her intention to continue residing with the Defendant as husband and wife for the rest of her life as it was their “life plan” to do so.
  • After the parties separated, defendant continued to financially support plaintiff until he remarried

Clearly, these facts are starkly different from Maeker v. Ross.  While Maeker really involved an allegation of an implied promise, here the court found that there was actually an express promise, albeit one that was not in writing.

Further, in addressing the partial performance issue, the court noted:

To date, Maeker is the only reported case to address the partial-performance exception in the context of a post-Amendment palimony claim. In Maeker, the plaintiff brought an action against defendant, which included, among other claims, a claim for palimony…………

Maeker court did not decide whether the partial-performance claim was an exception to the requirements of the Amendment. Instead the court found that, assuming the exception did apply, plaintiff’s pleadings failed to provide a basis for relief. Id. at 94. Specifically, Plaintiff’s pleading alleged that defendant’s performance, not Plaintiff’s, barred defendant from asserting a statute of frauds defense. Id. at 20. Furthermore, the court found that the case was distinguishable from the case relied on by the trial court, Klockner v. Green, 54 N.J. 230 (1969), finding that, unlike Klockner, “there was nothing exceptional or peculiar about the services performed by defendant, and plaintiff, as well as her son, already received the full benefit of those services.” Id. at 22.

Because Maeker was decided on the facts, it does not truly answer whether the exception applies as a matter of law. Moreover, the facts here are different. And it is indeed the facts of this particular case that compel this Court to take a closer look at the issue.  (Emphasis added).

The court then went on to state it’s rationale for finding that palimony was appropriate here:

With these principles in mind, the Court finds there is no good reason why a partial or – at the very least – full performance exception should not apply in the context of palimony  agreements. This case demonstrates the inequities that would result from a denial of the claim. Here, the parties had an oral agreement to reside and work together in marital type relationship. In fact, as far as they were concerned, they were husband and wife. Plaintiff relied on the Defendant’s promises and support for 39 years, gave birth to and raised four children, and generally provided companionship and homemaking. The children are now adults and the parties no longer share the same home. The Court finds the Plaintiff has fully performed her end of the bargain (to put it tersely). In addition, there is no way to quantify the value of the services.  Plaintiff provided over the course of 39 years, much less the value of foregone educational and work related opportunities. What is more, Defendant
does not deny the agreement and even acknowledged the obligation by deeds and words. Where then is the risk of fraud? The Court believes the risk lies in barring Plaintiff’s claim. Therefore, the Court holds that the partial or full performance exception can remove oral palimony agreements from the statute of frauds and further finds the facts satisfy the Plaintiff’s claim.  …..

… Instead, the Court is hopeful that its decision promotes the common mantra of the Chancery Division that “equity regards and treats as done what in good conscience ought to be done.” Gallicchio v. Jarzla, 18 N.J. Super. 206, 214-15 (Ch. Div. 1952).  (Emphasis added)

So there it is.  The parties acted as if they were married in all ways, but for the actual marriage.  The court did what it thought was fair.  End of story.  That said, this case in factually different from most palimony cases that we see, so it is easy to see how this decision, in the context of its specific facts, came to be.  Whether this will survive appellate scrutiny remains to be seen.


Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices, though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

Very often, we blog on cases for which we have had no involvement.  Today we get to toot our own horn a little and blog on one of our cases that made new law.  The case is Maeker v. Ross, a reported (precedential) opinion decided on February 4, 2013 by the Appellate Division.  This case may very well represent the death knell of palimony cases as we knew them. 

As we blogged about in the past, in 2010, the Legislature passed an amendment to the Statute of Frauds which required palimony agreements to be in writing and further stated that no action for palimony shall be brought unless the agreement was in writing  The Appellate Division quite definitively interpreted the legislative intent of the amendment to preclude any palimony suits brought after the amendment unless there was a written agreement that complied with the amendment, even if the relationship and alleged promise for support predated the amendment.  The Appellate Division stated:

… The motion judge found that plaintiff’s complaint was not barred by the 2010 amendment to the Statute of Frauds, N.J.S.A. 25:1-5(h) (Amendment), requiring a writing memorializing palimony agreements and independent advice of counsel for each party in advance of executing any such agreement. We reverse and hold that the Amendment is enforcement legislation that addresses under what circumstances
a claimed breach of a palimony agreement may be enforced irrespective of when the purported agreement was entered.

In this case, the parties were in a more than 10 year relationship where they resided together and defendant provided for support and other financial benefits for plaintiff.  There was, however, no joint property, joint accounts, and nothing other than insignificant joint financial ties.  The trial judge allowed the claim for palimony to continue based upon an implied promise of support (palimony).

Continue Reading Is Palimony In New Jersey Over As We Knew It?

For those of you have have followed the continuum in New Jersey’s palimony law, October has proven to be a busy month, with not one but two opinions.

Nearly one year ago, the NJ legislature passed law that, in sum, prohibited the enforcement of palimony agreements that have not been put in writing.  When the new law went into effect, we quickly blogged on the breaking news.  To check out that post, click here.

With the passage of N.J.S.A. 25:1-5(h) came many questions.  Attorneys and litigants wondered what would happen to those cases already pending before the court; what would happen to those who had valid claims for palimony under what had previously been the law in NJ but did not yet act?  Lots had an opinion, but really only time would tell.  Botis v. Estate of Kudrick, 421 N.J. Super, 107 (App. Div. 2011) provided some guidance, telling practitioners and litigants alike that the statute applied only to suits filed after its effective date.

On October 6, 2011, a Hudson County Superior Court judge upheld a non-written palimony agreement, finding overwhelming evidence that the parties "lived together, and had made a commitment to each other to support each other, to share with each other, and most of all, as is implicit in every agreement, to treat each other fairly and avoid harm to the other."

In the matter of Fernandes v. Arantes,  this same sex couple had been living together since 1996.  In 2005, after 11 years of living together in various locations all over the world, they bought a home in Jersey City, however only Arantes’ name was on the deed (although Fernandes’ was added later). The parties never married or entered a formal union but did exchange vows in an informal setting, shared expenses and investments, and supported each other financially, claimed Fernandes.

In April 2009, Arantes obtained a temporary restraining order against Fernandes.  The case was dismissed although a no-contact order was issued, which prevented Fernandes from accessing the Jersey City home.  On October 20, 2009, Fernandes filed a motion which sought access to the home to retrieve belongings and replacement of $80,000 Arantes allegedly withdrew from a joint bank account.  On February 15, 2011, an amended complaint was filed, alleging palimony and unjust enrichment.  In defense, Arantes claimed the relationship ended in 2001 and the parties only continued to live together for financial reasons.

After hearing testimony, the trial judge found that the relationship was that of a marital-type relationship.  Finding that "[p]arties who entered into these kinds of relationships usually do not record their understanding in specific legalese", the trial court awarded Fernandes’ claim of palimony, although the amended complaint was filed after the passage of the statute.

As this is a trial court opinion, it is not binding on other courts.


On his last day in office in January 2010, Governor Corzine signed a bill amending the Statute of Frauds to require that all palimony contracts had to be in writing.  The bill was a knee jerk reaction by the legislature who were unhappy with a number of more recent court decisions liberally allowing for palimony claims including the ruling in Devaney v. L’Esperance that cohabitation was not necessary to palimony claimWe have blogged on the new statute in the past.  Since that time, the debate and raged, and litigation has ensued, over whether the law applied to pending palimony claims.  In fact, courts were split on whether pending claims should continue or whether they should be dismissed.  The question was answered by the Appellate Division on April 21, 2011, in the case of Botis v. Estate of Kudrick et al when the court definitively held that the statute was to only be applied prospectively.

In this case, the parties met in high school in the 1950s and married other people, but commenced a relationship in the 1970s after the end of their respective marriages.  They eventually moved in together and had a marriage like relationship as alleged by the plaintiff.  She even claims that she invested the proceeds of the sale of her home into furnishing the defendant’s newly expanded home.  They later jointly purchased a home together in Wareton which was later transferred only into the defendant’s name, allegedly for tax purposes.  Plaintiff claimed that because of his superior finances, defendant promised to take care of her financially in the lifestyle they had shared together in the event of his death.  However, when the defendant became stricken with cancer, plaintiff learned that she was not provided for in his will.  As such, she sought palimony and transfer of title of the two homes to her.  The litigation in which the man’s estate was the defendant, was characterized as "entrenched and highly adversarial" on all issues.

Continue Reading Palimony Claims Still Alive Says Appellate DIvision – Statute Only Applies Prospectively

In January 2010, on his way out of office, Governor Corzine signed a bill requiring palimony agreements to be in writing.  We previously blogged on the enactment of that law.  The question that arose is whether the bill was prospective in nature or whether it applied retroactively.  At a seminar I attended in May, I heard a judge say that the policy at that time was to only allow cases to proceed if they had been filed before the enactment of the statute.  Conversely, even if the palimony promise had been made pre-statute, if the law suit was not filed, it would be dismissed.

As noted on the front page of the July 19, 2010 New Jersey Law Journal, there are several motions now pending in the Appellate Division, including one filed by this firm, addressing whether there should be retroactive application of the statute.  A judge in Atlantic County has held that the statute should be retroactively applied.  Judges in Monmouth and Somerset Counties came to the opposite conclusion.

When the issue is resolved one way or another, we will update this blog.

In October of 2008, Jennifer W. Milner blogged on palimony and pending legislation (S-2091), which, if enacted, would overturn the palimony decisions she discussed by requiring that any such contract to support one for life must be in writing and signed by the person making the promise. More specifically, that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of the relationship or after its termination, is not binding unless it is in writing and signed. The editor of the blog, Eric S. Solotoff, promised that we would updated the blog accordingly. Well, on January 15, 2010, just a few short days before Jon Corzine’s last day as Governor, he signed legislation (S-2091) which prohibits the enforcement of palimony agreements that have not been put in writing. The new law provides that a promise of palimony is not binding unless it is in writing. It also requires both parties to receive independent advice of legal counsel before the agreement can become binding. This law closes a loophole in state law that has allowed palimony claims even when unmarried couples never lived together or did not put their promises of support in writing. The new law takes effect immediately.

Women will no doubt be hurt by this new law.  There remains questions as to what the law means to both pending palimony cases as well as people who have in been relationships that would have merited palimony but for the new law.  We would expect that there will be more to come on this.


The law surrounding palimony has been fluid in the last several months as the New Jersey Courts have refined litigants rights after the break up of relationships in which the parties were not married. Most of the decisions are consistent with the New Jersey Supreme Court’s decision in Kozlowski v. Kozlowski, 80 N.J. 378 (1979), which had held that a promise of lifetime support by one cohabitant to another in a marital-like relationship would be enforced, if one of the partners was induced to cohabit by the promise.  The court held that the right to such support is found in contract principles and that the contract may be either express or implied. This principle has been upheld consistently by the Courts.


In a most recent case, however, Bayne v. Johnson, decided October 27, 2008 and approved for publication, the Appellate Division denied palimony to a woman who had had a long standing, marital type relationship with her paramour. The unique facts in this case involved an entrepreneur, Earl Johnson, who had married a wealthy woman twenty years his senior for convenient purposes. In 1981, Mr. Johnson met, Fiona Bayne, a flight attendant, on a trip between London and Dublin. Over the course of the next 19 years, they engaged in a serious relationship. At first, Ms. Bayne did not know about Mr. Johnson’s marriage, but eventually found out. After getting over the initial shock, the three proceeded to live together in different locations including Florida, Las Vegas, Chicago, the Bahamas, and New Jersey. During this time, Ms. Bayne became the caretaker of Mr. Johnson’s wife, and they lived an upscale lifestyle which was in part over the years supported by a joint bank account to which the three had access and was funded by the significant trust income of Mrs. Johnson. Ms. Bayne’s name was listed on this account as “Johnson”, and there was testimony that Mr. Johnson and Ms. Bayne held themselves out to be husband and wife. During the course of the relationship, Ms. Bayne was heavily involved in certain business interests of Mr. Johnson, as a manager. Although Mr. Johnson had many business interests throughout this time, most were not successful and the parties’ lifestyle was derived from the income of elderly Mrs. Johnson.


In 2000, Ms. Bayne left Mr. Johnson. She initially remained on the East Coast, but then returned to her home in the UK. She subsequently sued Mr. Johnson, claiming that she was entitled to palimony based on an alleged agreement to pay her future support.


The Appellate Division found that Ms. Bayne was not entitled to palimony. The Court agreed with the trial court which found that there was a marital type relationship between Mr. Johnson and Ms. Bayne, which is the first requirement for a palimony award. However, the court disagreed with the trial court’s finding that there was an implied promise by Mr. Johnson to support Ms. Bayne for her life. The Appellate Court determined that Ms. Bayne knew that Mr. Johnson was essentially a failed entrepreneur, and that she knew that he was dependent on his wife’s money. Thus, her request for palimony was denied based upon the fact that at the time of their separation, Ms. Bayne was actually more economically self sufficient than Mr. Johnson. The court pointed out the essential fact that palimony is the enforcement of a broken promise made for future support, and not compensation for years spent in a failed relationship.


Almost as foreshadowing, on October 2, 2008, S-2091 was introduced by State Senator Nicolas P. Scutari introduced legislation which is intended to overturn these "palimony" decisions by requiring that any such contract must be in writing and signed by the person making the promise. More specifically, the bill provides that a promise by one party to a non-marital personal relationship to provide support for the other party, either during the course of such relationship or after its termination, is not binding unless it is in writing and signed.  To see the bill, click here.


There is not doubt that there will be spirited debate on the issue of whether the legislature should prevent a court of equity from determining whether one is entitled to palimony. It appears from the Bayne case that the Courts are more than able to review each case on its own fact and merits and determine when relief is appropriate.


EDITOR’S NOTE:  If and when the proposed palimony bill is passed, we will update the blog accordingly.  If it is passed, that will essentially represent the death knell of palimony cases because the promise is virtually never put it writing.  it would also do away with the concept of "implied promise" found in these cases.   Eric S. Solotoff