                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4221-15T4

BARBARA TERRANOVA,

        Plaintiff-Appellant,

v.

ESTATE OF STUART PAER
and BENEFICIARIES,

        Defendants-Respondents.

_________________________

              Argued August 30, 2017 – Decided November 17, 2017

              Before Judges Alvarez and Gooden Brown.

              On appeal from the Superior Court of New
              Jersey, Chancery Division, Family Part,
              Monmouth County, Docket No. FM-13-1049-16.

              Angelo Sarno argued the cause for appellant
              (Snyder Sarno D'Aniello Maceri & da Costa,
              LLC, attorneys; Mr. Sarno, of counsel and on
              the briefs; Lydia S. LaTona, on the briefs).

              Matthew N. Fiorovanti argued the cause for
              respondent (Giordano, Halleran & Ciesla, PC,
              attorneys; Michael J. Canning, of counsel and
              on the brief; Mr. Fiorovanti, on the brief).

PER CURIAM
      Plaintiff appeals from the April 22, 2016 Family Part order

dismissing her complaint for palimony for failure to state a claim.

We affirm.

      Because    this    appeal     arises        from       a   motion     to   dismiss    a

complaint,      "we    accept     as    true          the    facts      alleged    in    the

complaint[,]"     Craig v. Suburban Cablevision, Inc., 140 N.J. 623,

625   (1995),    and    summarize      the       pertinent          background    from   the

pleadings.      Plaintiff and Stuart Paer, a retail mattress tycoon,

were not married but were in a long-term committed relationship

for fifteen years from 1996 until Paer's untimely passing on April

5,    2011.      Over    the     course          of    the       couple's    fifteen-year

relationship,     they    worked       together,            lived    together,    traveled

together, and existed as a family unit.                      They held themselves out

to the world as husband and wife and maintained a marital-type

lifestyle, particularly after 1997 when Paer proposed marriage and

gave plaintiff an engagement ring.

      According to plaintiff, Paer supported her financially in a

lavish lifestyle throughout the fifteen-year relationship, and

promised on numerous occasions that he would always take care of

her and support her for life.                In reliance on Paer's promises,

plaintiff     abandoned    her    career          opportunities.            Instead,     she

supported his business ventures, maintained their various homes,

helped raise his two daughters from adolescence to adulthood,

                                             2                                      A-4221-15T4
cared for him after his 2008 stage four liver cirrhosis diagnosis,

and devoted herself to his emotional and physical needs.

      Despite the promises of lifetime support, plaintiff was not

a   beneficiary    in    Paer's   will,       and   she   received     none      of   the

considerable assets or property accumulated during their fifteen-

year relationship, but held solely in Paer's name. Instead, Paer's

two   daughters,        Natasha   and        Alyssa,1     were     named   residuary

beneficiaries in Paer's 2004 will.              After his death, Paer's estate

refused to honor his purported promise of lifetime support to

plaintiff.2   As a result, on November 16, 2011, plaintiff filed in

the Family Part a complaint for palimony and other equitable relief

against the estate and its beneficiaries, Natasha and Alyssa.3

      On January 23, 2012, a Family Part judge dismissed the

palimony count of plaintiff's complaint.                   The judge determined

that plaintiff's palimony claim was barred under the Statute of

Frauds,   N.J.S.A.      25:1-5(h),      as    amended     on     January   18,    2010,

requiring palimony agreements to be in writing.                   On March 6, 2012,


      1
      Because the parties share common surnames, we refer to them
by their first names in this opinion for clarity and ease of
reference, and intend no disrespect.
      2
       Plaintiff was named as a beneficiary on a life insurance
policy, which provided her with $60,000 in death benefits.
      3
       A palimony obligation has been held enforceable against the
estate of the promisor. In re Estate of Roccamonte, 174 N.J. 381,
395-97 (2002).

                                          3                                   A-4221-15T4
we denied plaintiff's motion for leave to file an interlocutory

appeal from the dismissal of her palimony claim.         In the absence

of a palimony count, the Family Part judge transferred the case

to the General Equity Part pursuant to Rule 4:3-1, where a June

20, 2013 order granting defendants' motion for summary judgment

resulted in the dismissal of the remaining counts of plaintiff's

complaint with prejudice.    Plaintiff did not appeal the dismissal.

     Thereafter,   the   applicability   of   the   amended   Statute   of

Frauds to oral palimony agreements that predated the statute's

amendment was challenged.    In Maeker v. Ross (Maeker I), 430 N.J.

Super. 79 (App. Div. 2013), rev'd, 219 N.J. 565 (2014), we held

that because palimony actions are based upon principles of contract

law, a palimony plaintiff's cause of action accrued at the time

the defendant is alleged to have breached the agreement, not at

the time the promise of lifetime support was purportedly made.

Here, the Family Part judge's dismissal of plaintiff's palimony

count was consonant with our interpretation in Maeker I, supra,

because plaintiff's cause of action accrued in 2011 when the breach

occurred, and was therefore governed and barred by the 2010

amendment to the Statute of Frauds.

     In 2014, however, the Supreme Court reversed our ruling and

held that the 2010 amendment to the Statute of Frauds did not

apply retroactively to void oral palimony agreements that predated

                                  4                              A-4221-15T4
its enactment.       Maeker v. Ross (Maeker II), 219 N.J. 565, 580-82

(2014).     The Court explained that the date the oral contract was

formed, rather than the date the cause of action accrued, was the

controlling date "for retroactivity purposes."           Id. at 582.     Under

the Supreme Court's holding in Maeker II, supra, plaintiff's

palimony count, predicated on promises made during their fifteen-

year relationship, pre-dated the 2010 amendment to the Statute of

Frauds and was therefore enforceable.

       Relying on the Supreme Court's decision in Maeker II, supra,

on   January    8,   2016,   plaintiff   filed   a   second    complaint    for

palimony.      Defendants moved to dismiss the complaint for failure

to state a claim.      In support, Natasha certified that her father's

2004    will,    for   which   she   and   her   sister       were   appointed

administrators, "made several specific bequests of his property,"

but "did not specifically bequest any property to [p]laintiff, or

otherwise provide for any lifetime support for [p]laintiff[.]"

According to Natasha, after plaintiff's first palimony complaint

was dismissed with prejudice in 2013 and plaintiff never appealed

the dismissal, she and her sister distributed "a significant

portion of the Estate's assets" for living expenses.                   Natasha

averred that "[i]f the court permits [p]laintiff to pursue a claim

against the Estate," they would be prejudiced because "[their]



                                     5                                 A-4221-15T4
lives would be severely disrupted, and [their] long-term financial

condition placed in serious jeopardy."

       After oral argument, in an April 22, 2016 order, the court

granted   defendants'       motion    and    dismissed   the   complaint      with

prejudice.    In an accompanying statement of reasons, the court

stated that "rather than file a motion seeking to vacate the final

order entered in this case under [Rule] 4:50-1, [plaintiff] filed

a new [c]omplaint seeking the same relief which was previously

denied by the court."         The court determined that because it was

"procedurally improper" and "in direct contravention with the

entire controversy doctrine[,]" dismissal of the complaint was

warranted.     The court explained that "even if [plaintiff] had

filed a motion for vacation of the final judgment . . . under

[Rule] 4:50-1, her application would likewise be unsuccessful as

the final judgment in this case was entered on June 20, 2013,

nearly    three   (3)   years        ago."      According      to   the    court,

"[plaintiff's] application would not be considered to have been

made within a reasonable time[,] and her circumstances are not so

extreme as to warrant vacation of the final judgment entered in

this matter."

       The court acknowledged that the facts in Maeker II, supra,

were   not   unlike   the    facts    surrounding    plaintiff      and    Paer's

relationship.     However, the court noted that under applicable law,

                                        6                                 A-4221-15T4
the "jurisdiction of the court . . . cannot be invoked merely

because a party wishes to argue new or developing case law."              A.B.

v. S.E.W., 175 N.J. 588, 595 (2003).        Rather, the court analyzed

plaintiff's argument under State v. Burstein, 85 N.J. 394, 402-03

(1981), to determine whether "the Maeker [II] rule should be given

complete   retroactive      effect[.]"     The   court    concluded       that

"[plaintiff's] circumstances [were] not so extreme as to warrant

providing the Maeker rule with complete retroactive effect[,]"

when "[plaintiff] filed her new [c]omplaint for [p]alimony . . .

approximately [sixteen] months" after the "Supreme Court issued

its decision in Maeker [II,]" and "the final judgment . . .             [was]

more than [two and a half] years old."       This appeal followed.

     On appeal, plaintiff argues she should not be barred from

pursuing   her    palimony      claim    "because    of    an   erroneous

interpretation of law by the Appellate Division . . . or as a

result of a potential procedural defect made in attempting to

revive   [her]   palimony    claim."     Plaintiff   argues     the     court

misapplied Burstein, supra, because Maeker II, supra, did not

announce a new rule of law to which a retroactivity analysis

applied.   Plaintiff also argues she was entitled to relief under

Rule 4:50-1(f), and the court erred in dismissing her complaint

with prejudice rather than "deny the filing without prejudice and



                                    7                                 A-4221-15T4
direct [p]laintiff to file a motion" under Rule 4:50-1.            We

disagree.

     Plaintiff's palimony complaint is barred by principles of res

judicata.    Because the application of res judicata is a question

of law, we review this issue de novo.     See Walker v. Choudhary,

425 N.J. Super. 135, 151 (App. Div.), certif. denied, 211 N.J. 274

(2012).     Under the doctrine of res judicata, "a cause of action

between parties that has been finally determined on the merits by

a tribunal having jurisdiction cannot be relitigated by those

parties or their privies in a new proceeding." Velasquez v. Franz,

123 N.J. 498, 505 (1991).    "The rationale underlying res judicata

recognizes that fairness to the defendant and sound judicial

administration require a definite end to litigation."         Ibid.

(citing Restatement (Second) of Judgments, § 19 comment a (1982)).

     New Jersey law requires three basic elements for res judicata

to apply:

            (1) [T]he judgment in the prior action must
            be valid, final, and on the merits; (2) the
            parties in the later action must be identical
            to or in privity with those in the prior
            action; and (3) the claim in the later action
            must grow out of the same transaction or
            occurrence as the claim in the earlier one.

            [Watkins v. Resorts Int'l Hotel & Casino, 124
            N.J. 398, 412 (1991).]




                                  8                         A-4221-15T4
It is well settled that "a dismissal with prejudice constitutes

an adjudication on the merits 'as fully and completely as if the

order had been entered after trial.'"    Velasquez, supra, 123 N.J.

at 507 (quoting Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir.

1972)).

     Here, plaintiff's first palimony complaint was dismissed with

prejudice, constituting an adjudication on the merits. The parties

and the palimony claim in the second action are identical to those

in the prior action.       Therefore, the dismissal of plaintiff's

first complaint with prejudice bars her subsequent suit against

the same parties on the same issue, where the operative facts of

the subsequent suit are identical to the first.    We agree with the

trial court that plaintiff's only possible recourse to revive her

palimony claim was to move pursuant to Rule 4:50-1(f) to vacate

the final judgment and persuade the court that Maeker II, supra,

should be applied retroactively to all cases, including those like

hers, where final judgment had been entered and the time for appeal

long expired.   However, because the court also conducted a Rule

4:50-1(f) analysis in rejecting plaintiff's attempt to reinstate

her palimony claim, we next consider the propriety of the court's

decision in that regard.

     The amended Statute of Frauds was a new rule of law, but was

silent as to retroactivity.    Maeker II, supra, decided whether the

                                  9                          A-4221-15T4
statute applied to oral palimony agreements that predated the

statute's amendment.   In so doing, Maeker II, supra, may be viewed

as announcing a new rule of law by virtue of its interpretation

of the amended statute.     To determine whether we should apply

Maeker II, supra, to this case despite the longstanding final

judgment, we must analyze how the new rule should be applied.

     A court confronted with that inquiry has four options:

          (1) [M]ake the new rule of law purely
          prospective, applying it only to cases whose
          operative facts arise after the new rule is
          announced; (2) apply the new rule to future
          cases and to the parties in the case
          announcing the new rule, while applying the
          old rule to all other pending and past
          litigation; (3) grant the new rule limited
          retroactivity, applying it to cases in (1) and
          (2) as well as to pending cases where the
          parties have not yet exhausted all avenues of
          direct review; and, finally, (4) give the new
          rule complete retroactive effect, applying it
          to all cases, even those where final judgments
          have been entered and all avenues of direct
          review exhausted.

          [Burstein, supra, 85 N.J. at 402-03.]

To determine which option to adopt, the court should consider the

following factors: "(1) the purpose of the rule and whether it

would be furthered by a retroactive application, (2) the degree

of reliance placed on the old rule by those who administered it,

and (3) the effect a retroactive application would have on the




                                10                          A-4221-15T4
administration of justice."    State v. Feal, 194 N.J. 293, 308

(2008).

     However, because "this is not a criminal case involving

constitutional issues or implicating the trustworthiness of the

fact-finding process[,] . . . there is no basis for granting"

retroactive application.   Ross v. Rupert, 384 N.J. Super. 1, 7

(App. Div. 2006).   "Instead, we deal with principles of finality

under [Rule] 4:50-1[] and the possibility of prejudice[.]"     Ross,

supra, 384 N.J. Super. at 9.   "[Rule] 4:50-1 permits a court to

relieve a party from a final judgment after the time for filing a

motion for reconsideration or an appeal has expired[,]" Ross,

supra, 384 N.J. Super. at 7-8, for the following reasons:

          (a) mistake, inadvertence, surprise, or
          excusable neglect; (b) newly discovered
          evidence which would probably alter the
          judgment or order and which by due diligence
          could not have been discovered in time to move
          for a new trial under [Rule] 4:49; . . . (e)
          the judgment or order has been satisfied,
          released or discharged, or a prior judgment
          or order upon which it is based has been
          reversed or otherwise vacated, or it is no
          longer equitable that the judgment or order
          should have prospective application; or (f)
          any other reason justifying relief from the
          operation of the judgment or order.

          [R. 4:50-1.]

     A motion for relief on any of these grounds "shall be made

within a reasonable time, and for reasons (a), (b) and (c) of


                               11                            A-4221-15T4
[Rule] 4:50-1[,] not more than one year after the judgment, order

or proceeding was entered or taken."             R. 4:50-2.     "Rule 4:50-1

provides for extraordinary relief and may be invoked only upon a

showing of exceptional circumstances."            Baumann v. Marinaro, 95

N.J. 380, 393 (1984).       However,

           [A] "change in the law or in the judicial view
           of an established rule of law is not such an
           extraordinary circumstance" as to justify
           relief from a final judgment where the time
           to appeal has expired. This is unquestionably
           the general rule and rests principally upon
           the important policy that litigation must have
           an end.

           [Hartford Ins. Co. v. Allstate Ins. Co., 68
           N.J. 430, 434 (1975) (quoting Collins v.
           Whichita, 254 F.2d 837, 839 (10th Cir.
           1958)).]

     The   court      determines     whether   exceptional     circumstances

warranting relief from a judgment exist by analyzing the particular

facts of each case, while remaining mindful of the well-settled

principle that finality should attach to judgments.              Hous. Auth.

of Morristown v. Little, 135 N.J. 274, 294 (1994);            see also   A.B.,

supra,   175   N.J.    at   593-94    (holding    order   denying   parental

visitation not subject to reconsideration based on new rule of law

concerning visitation rights of domestic partners); Zuccarelli v.

N.J. Dept. of Envtl. Prot., 326 N.J. Super. 372, 379-81 (App. Div.

1999) (rejecting motion to vacate settlement based on subsequent

change of law), certif. denied, 163 N.J. 394 (2000); Wausau Ins.

                                      12                             A-4221-15T4
Co. v. Prudential Prop. & Cas. Ins. Co., 312 N.J. Super. 516, 518-

19   (App.    Div.     1998)          (denying       reconsideration       based     on

clarification of law concerning uninsured motorist coverage); Smid

v. N.J. Highway Auth., 268 N.J. Super. 306, 308-09 (App. Div.

1993) (denying reconsideration based on new Supreme Court decision

rendered following denial of certification), certif. denied, 135

N.J. 467 (1994).      But see Lee v. W.S. Steel Warehousing, 205 N.J.

Super. 153, 156-58 (App. Div. 1985) (permitting reopening of

administrative       order       in       workers'     compensation       action     to

recalculate disability award based on intervening Supreme Court

decision); Hyjack v. Nolan, 144 N.J. Super. 545, 554-55 (Law Div.

1976)   (granting       reconsideration              of   administrative         order

terminating    plaintiffs'        disability         pension   benefits     following

successful    appeal        of   other       similarly     situated       pensioners,

"[b]ecause of the factual relationship involved"), aff'd o.b., 154

N.J. Super. 173 (App. Div. 1977).

     We conclude that Rule 4:50-1 and the principle of finality

preclude granting plaintiff relief from the final judgment in this

case.   We acknowledge that under Maeker II, plaintiff's palimony

claim would have been cognizable.                However, the salutary purpose

behind the rule of finality is not overcome in this case, where

plaintiff    failed    to    file     a    timely    appeal    of   her   2013   final

judgment, sat on her rights from 2013 to 2014 while Maeker II was

                                            13                                A-4221-15T4
litigated in the Supreme Court, and commenced an action two years

after the Supreme Court rendered its decision.         To rule otherwise

would severely and unfairly prejudice defendants.            We recognize

that there are equities on both sides; however, in the final

analysis,   we   simply   find   it   inappropriate   to   circumvent   the

jurisprudence so clearly developed under Rule 4:50-1.           Thus, the

motion judge properly concluded plaintiff was not entitled to

relief under Rule 4:50-1(f).

    Affirmed.




                                      14                          A-4221-15T4
