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Overbay v. Overbay

March 18, 2005

W. BRUCE OVERBAY, PLAINTIFF-RESPONDENT/CROSS-APPELLANT,
v.
MARY ELLEN OVERBAY, DEFENDANT-APPELLANT/CROSS-RESPONDENT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Somerset County, FM-18-1083-01.

Before Judges Coburn, Wecker and Graves.

The opinion of the court was delivered by: Graves, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 26, 2004

Both parties appeal from a Dual Judgment of Divorce and a subsequent order denying cross-motions for reconsideration, claiming the trial court erred in awarding defendant alimony in the amount of $3,000 per month. Defendant, Mary Ellen Overbay, contends that the trial court misapplied Miller v. Miller, 160 N.J. 408 (1999), when it imputed income to her in the amount of $80,000 per year by attributing a 7.4 percent rate of return on inheritance assets. Because we are convinced this argument has merit, we reverse and remand to the Family Part for reconsideration and redetermination of alimony.

After being married for more than thirty-one years, and raising three children, the parties were divorced on September 17, 2002. Plaintiff, W. Bruce Overbay is now sixty-one years old, and defendant will be fifty-eight years old this month. The three children all successfully completed college and were emancipated at the time of the divorce.

Following a five-day trial, the court set forth its findings in a letter opinion dated August 12, 2002. The court concluded that during the marriage the parties enjoyed"a comfortable lifestyle which can be reasonably maintained." During most of the marriage the parties lived in an attractive Colonial style home, with a living area of approximately 3,700 square feet, a fair market value of $807,500, and a net equity of approximately $722,500 at the time of trial. Both parties received an M.B.A. degree from Wharton School of Business. As agreed to by the parties, defendant gave up her career at Citibank early in the marriage to become a full-time homemaker and mother, while plaintiff functioned as the father and full time wage earner.

At the time of trial, plaintiff was in good health earning $132,000 per annum plus a significant benefits package as a result of his employment at ExxonMobile, which began shortly after the parties were married. The trial court found"[t]here is no reason to believe that his employment [in a managerial position] will not continue. He has in the past been receiving an increase equal to about 2.68% on the average over the last ten years."

Defendant, on the other hand, is not in good health. The trial judge found she has"serious health problems, suffering primarily from heart problems [that] resulted in two prior hospitalizations." Defendant taught two classes at Seton Hall University, earning $12,000 annually and, given her"significant medical problems," the court stated"[h]er future employability is uncertain."

The trial judge's resolution of the major issues can be summarized as follows:

1. Plaintiff was ordered to pay alimony to defendant in the amount of $3,000 per month.

2. The marital residence was to be sold with the net proceeds of sale equally divided between the parties; however, in a subsequent consent order, defendant purchased plaintiff's interest in the marital home for $340,000.

3. Plaintiff's pension with ExxonMobile attributable to employment during the marriage, until the filing of the complaint for divorce, was equally divided.

4. The balance in plaintiff's savings plan account with ExxonMobil was equally divided as of the date the ...


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