'Matrimorphology'

The purpose of this short discourse is to revitalize the concept that law is not static; it is dynamic ' always changing. Therefore, to look at the law through one case or one statute is to ignore the reality that one observation is but a point on a continuum of development. An observer cannot fully appreciate a point of law without comprehending its origins ' and this process gives context.

Case in point: In 1971, the Divorce Reform Act became part of New Jersey's law. It radically changed the state's divorce law. For purposes of this article, suffice it to say that, among other notable innovations, it injected the concept of “equitable distribution” into the law in place of the prior law, which distributed property incident to a divorce based in large part upon title ownership. The law in its original 1971 form was simple: It authorized a court to divide equitably all “property, both real and personal, which was legally and beneficially acquired by [the parties] or either of them during the marriage.” The statute provided no guidance as to the methodology which a trial court was to use in carrying out its discretionary function in this regard.

In 1974, the New Jersey Supreme Court issued four contemporaneous opinions that form the bedrock of interpretation of that statute. In addition to holding the statute constitutional, they proscribed a broad universe of what constituted property available for equitable distribution. Painter v. Painter, 65 N.J. 196, 320 A.2d 484 (1974), held that property acquired during the marriage by way of gift or inheritance “' or indeed in any other way '” would be subject to equitable distribution, Id. at 214-216 (emphasis added).

Personal Injury Awards

On the heels of these four giants, and following their broad proscription of includibility, the intermediate appellate court in New Jersey held that all aspects of a personal injury award (economic as well as individual pain and suffering) would be subject to equitable distribution. DiTolvo v. DiTolvo, 131 N.J. Super. 72, 328 A.2d 625 (1974), however, put the issue of includibility of personal injury awards aside to be addressed at a later date.

Equitable Distribution

On the last day of the year in 1980, an amendment to the equitable distribution statute became law. It provided for an exemption from equitable distribution of property acquired by “gift, devise or bequest.” Notwithstanding this legislative contraction, the court continued its broad-brush approach. In Sleeper v. Sleeper, 187 N.J. Super. 544, 446 A.2d 1220 (App. Div. 1982), the intermediate appellate court did an end run around the Legislature by narrowly construing the amendment so as not to include property acquired by intestate succession. Angered by this strategy, the Legislature, in 1983, replaced the word “bequest” with “intestate succession,” thereby closing that loophole.

This, then, was the legal stage for the Supreme Court's decision in Landwehr v. Landwehr, 111 N.J. 491, 545 A.2d 738 (1988). Reenter the DiTolvo issue of division of personal injury awards. In Landwehr, the court reviewed the statutory and judicial history of the aforementioned amendments. In so doing, it retreated (somewhat) from its prior approach of expansive includibility. Noting that the Legislature evinced a policy by which some property acquired during the marriage might belong solely to one spouse, and not to both, the court held that the portion of a personal injury award reflective of the injured party's pain and suffering would not be divisible in a divorce action. In so doing, the court said:

[I]n our subsequent constructions of [the equitable distribution statute], we should be sensitive to the reasons why a spouse acquires an asset, and the conception that some assets are so inherently personal they may not properly be treated as marital property. 111 N.J. at 498-499.

The point is that if we examine a particular case and dissect its holding, we are only viewing the law as a myopic snapshot in time. It is much like the difference between speed and velocity in physics. Speed describes the distance that an object covers over a given time; velocity, on the other hand, implicates speed in a particular direction.

Enter 'Matrimorphology'

By analogy, the holding of a case tells you what is happening in a finite moment. On the other hand, matrimorphology ' the study of the progression of the law leading up to the case in point ' gives the reader an historical foundation for understanding the current law and postulating where in what direction it is predictably headed.

Using the New Jersey construct as an example, what happened with third-party gratuitous transfers can be applied to other issues. It could be said that the State's public policy (as evidenced by the progression of the common and statutory law) is that equitable distribution is not as all-encompassing as originally thought or interpreted by the New Jersey Supreme Court. Moreover, the legislature reins in the courts when their “interpretation” goes farther than the legislature either intended or (at a particular point in time) would like.

Take another New Jersey example. Courts in the State recognize the often-advanced concept of “palimony,” first made famous in the California case of Marvin v. Marvin. But, in some observers' opinions, the courts in New Jersey had taken the concept to extremes by allowing such an action to prevail in the absence of cohabitation.

The legislature then took control. Senate bill S-2091 became law earlier this year, P.L. 2009, c. 311. That law amends the Statute of Frauds by providing that, inter alia, all promises by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of the relationship or after its termination is not binding unless in writing signed by the party to be charged.

By the statement attached to the initial version of the bill (the only difference being the addition of “or other consideration” being added to the final version), “[t]his bill is intended to overturn [the Devaney v. L'Esperance, 195 N.J. 247 (2008), In re Estate of Roccamonte, 174 N.J. 381 (2002), and Kozlowski v. Kozlowski, 80 N.J. 378 (1979)] “palimony” decisions by requiring that any such contract must be in writing and signed by the person making the promise.”

Putting this statute into the context of this article, there are any number of palimony cases pending in the State at any point in time. Assume there is an application to dismiss a palimony case, the gravamen of which is not evidenced by a writing (as virtually none of them are) but instead grounded on an allegation that the “understanding” between them, either express or implied, flowed “from their language, conduct, and the surrounding circumstances.” Putting aside the various arguments for and against the defense that the statute should not be applied retroactivity to fact situations arising prior to its enactment, can it be said that the attitude of a review court should be generous to the plaintiff or respectful of the legislature's newly stated policy?

Conclusion

If the history of the law is that the legislature reins in the courts when the former perceives that the latter has gone too far, a court might be inclined in this context to lean toward dismissal. However, counsel could not even make this argument if he/she were not familiar with general concepts of matrimorphology in the New Jersey family law context. Thus, judicial bias (not meant in a discriminatory sense) should be (as the New Jersey Supreme Court has phrased) “sensitive” to legislative policies.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is an equity partner with Fox Rothschild, LLP in Roseland, NJ.

Matrimorphology ' what is it? Well, let's look at the dictionary. Start with “morph” ' that means “to transform. “Ology” (loosely) means “the study of.” “Matri” (as used by divorce lawyers) is short for “matrimonial.” Put them all together and matrimorphology means the study of changing matrimonial law.

This field is not all that new ' on its face. As lawyers, we search statutes and cases all the time. What may be new is the realization that during the course of representing a client, it may be necessary not just to locate current law on a subject, but to go back in time in order to discern and articulate the historical trend in the law. For (as one insightful and astute law professor has often said) one cannot predict the future direction of the law without knowing from what direction it came.

The Divorce Reform Act of NJ

The purpose of this short discourse is to revitalize the concept that law is not static; it is dynamic ' always changing. Therefore, to look at the law through one case or one statute is to ignore the reality that one observation is but a point on a continuum of development. An observer cannot fully appreciate a point of law without comprehending its origins ' and this process gives context.

Case in point: In 1971, the Divorce Reform Act became part of New Jersey's law. It radically changed the state's divorce law. For purposes of this article, suffice it to say that, among other notable innovations, it injected the concept of “equitable distribution” into the law in place of the prior law, which distributed property incident to a divorce based in large part upon title ownership. The law in its original 1971 form was simple: It authorized a court to divide equitably all “property, both real and personal, which was legally and beneficially acquired by [the parties] or either of them during the marriage.” The statute provided no guidance as to the methodology which a trial court was to use in carrying out its discretionary function in this regard.

In 1974, the New Jersey Supreme Court issued four contemporaneous opinions that form the bedrock of interpretation of that statute. In addition to holding the statute constitutional, they proscribed a broad universe of what constituted property available for equitable distribution. Painter v. Painter , 65 N.J. 196, 320 A.2d 484 (1974), held that property acquired during the marriage by way of gift or inheritance “' or indeed in any other way '” would be subject to equitable distribution, Id . at 214-216 (emphasis added).

Personal Injury Awards

On the heels of these four giants, and following their broad proscription of includibility, the intermediate appellate court in New Jersey held that all aspects of a personal injury award (economic as well as individual pain and suffering) would be subject to equitable distribution. DiTolvo v. DiTolvo , 131 N.J. Super. 72, 328 A.2d 625 (1974), however, put the issue of includibility of personal injury awards aside to be addressed at a later date.

Equitable Distribution

On the last day of the year in 1980, an amendment to the equitable distribution statute became law. It provided for an exemption from equitable distribution of property acquired by “gift, devise or bequest.” Notwithstanding this legislative contraction, the court continued its broad-brush approach. In Sleeper v. Sleeper , 187 N.J. Super. 544, 446 A.2d 1220 (App. Div. 1982), the intermediate appellate court did an end run around the Legislature by narrowly construing the amendment so as not to include property acquired by intestate succession. Angered by this strategy, the Legislature, in 1983, replaced the word “bequest” with “intestate succession,” thereby closing that loophole.

This, then, was the legal stage for the Supreme Court's decision in Landwehr v. Landwehr , 111 N.J. 491, 545 A.2d 738 (1988). Reenter the DiTolvo issue of division of personal injury awards. In Landwehr, the court reviewed the statutory and judicial history of the aforementioned amendments. In so doing, it retreated (somewhat) from its prior approach of expansive includibility. Noting that the Legislature evinced a policy by which some property acquired during the marriage might belong solely to one spouse, and not to both, the court held that the portion of a personal injury award reflective of the injured party's pain and suffering would not be divisible in a divorce action. In so doing, the court said:

[I]n our subsequent constructions of [the equitable distribution statute], we should be sensitive to the reasons why a spouse acquires an asset, and the conception that some assets are so inherently personal they may not properly be treated as marital property. 111 N.J. at 498-499.

The point is that if we examine a particular case and dissect its holding, we are only viewing the law as a myopic snapshot in time. It is much like the difference between speed and velocity in physics. Speed describes the distance that an object covers over a given time; velocity, on the other hand, implicates speed in a particular direction.

Enter 'Matrimorphology'

By analogy, the holding of a case tells you what is happening in a finite moment. On the other hand, matrimorphology ' the study of the progression of the law leading up to the case in point ' gives the reader an historical foundation for understanding the current law and postulating where in what direction it is predictably headed.

Using the New Jersey construct as an example, what happened with third-party gratuitous transfers can be applied to other issues. It could be said that the State's public policy (as evidenced by the progression of the common and statutory law) is that equitable distribution is not as all-encompassing as originally thought or interpreted by the New Jersey Supreme Court. Moreover, the legislature reins in the courts when their “interpretation” goes farther than the legislature either intended or (at a particular point in time) would like.

Take another New Jersey example. Courts in the State recognize the often-advanced concept of “palimony,” first made famous in the California case of Marvin v. Marvin. But, in some observers' opinions, the courts in New Jersey had taken the concept to extremes by allowing such an action to prevail in the absence of cohabitation.

The legislature then took control. Senate bill S-2091 became law earlier this year, P.L. 2009, c. 311. That law amends the Statute of Frauds by providing that, inter alia, all promises by one party to a non-marital personal relationship to provide support or other consideration for the other party, either during the course of the relationship or after its termination is not binding unless in writing signed by the party to be charged.

By the statement attached to the initial version of the bill (the only difference being the addition of “or other consideration” being added to the final version), “[t]his bill is intended to overturn [the Devaney v. L'Esperance , 195 N.J. 247 (2008), In re Estate of Roccamonte , 174 N.J. 381 (2002), and Kozlowski v. Kozlowski , 80 N.J. 378 (1979)] “palimony” decisions by requiring that any such contract must be in writing and signed by the person making the promise.”

Putting this statute into the context of this article, there are any number of palimony cases pending in the State at any point in time. Assume there is an application to dismiss a palimony case, the gravamen of which is not evidenced by a writing (as virtually none of them are) but instead grounded on an allegation that the “understanding” between them, either express or implied, flowed “from their language, conduct, and the surrounding circumstances.” Putting aside the various arguments for and against the defense that the statute should not be applied retroactivity to fact situations arising prior to its enactment, can it be said that the attitude of a review court should be generous to the plaintiff or respectful of the legislature's newly stated policy?

Conclusion

If the history of the law is that the legislature reins in the courts when the former perceives that the latter has gone too far, a court might be inclined in this context to lean toward dismissal. However, counsel could not even make this argument if he/she were not familiar with general concepts of matrimorphology in the New Jersey family law context. Thus, judicial bias (not meant in a discriminatory sense) should be (as the New Jersey Supreme Court has phrased) “sensitive” to legislative policies.

Laurence J. Cutler, a member of this newsletter's Board of Editors, is an equity partner with Fox Rothschild, LLP in Roseland, NJ.