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Brown v. Giovanelli-Brown

Superior Court of New Jersey, Appellate Division

August 8, 2013

CHARLES W. BROWN, Plaintiff-Respondent/ Cross-Appellant,
v.
GLORIA J. GIOVANELLI-BROWN (n/k/a GLORIA J. GIOVANELLI), Defendant-Appellant/ Cross-Respondent,

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 12, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FM-11-450-10-C.

John M. Holliday, attorney for appellant/cross-respondent.

Skey & Bhattacharya, L.L.C., attorneys for respondent/cross-appellant (W.S. Gerald Skey, on the brief).

Before Judges Harris and Hayden.

PER CURIAM

Defendant Gloria J. Giovanelli-Brown and plaintiff Charles W. Brown appeal from certain provisions of their December 2, 2011 dual final judgment of divorce. Having carefully considered the parties' contentions in light of the applicable law, we affirm substantially for the reasons set forth in the trial judge's thorough written opinion.

The parties were married on May 8, 1987, and had no children. During the marriage, defendant was employed as a teacher in a local public school, and plaintiff was a truck driver. They also established a business known as "Alaska Trucking." Plaintiff, who did not draw a salary, ran the business and defendant financed it through a $100, 000 line of credit secured against her pre-marital real estate ("the Robbinsville property"). In 1998, when the business failed and ceased operating, the balance of the loan was $96, 643.50. From 1998 to 2003, defendant paid off the loan without any contribution by plaintiff.

Meanwhile, in 1995, defendant filed a medical malpractice action as a result of nerve damage she sustained during surgery in 1993. When the case settled in November 1999, defendant received a payment of $180, 368.72, which she deposited into an account in her name only.

In October 1998, while the malpractice case was pending, the parties separated. Plaintiff did not file his complaint for divorce until November 18, 2009. During the separation, the parties filed their tax returns jointly as a married couple until 2006, and defendant continued to pay for plaintiff's medical and vehicle insurance and loan him money to pay certain credit card and other debt.

At the time of trial, plaintiff, then fifty-six years old, received $1282 per month in social security disability benefits, from which he paid $233 per month for child support obligations. He did not own any real estate and had no pension or savings account. Defendant, then sixty-two years old, had retired from teaching in 2004, and received $47, 000 per year in pension benefits. She also earned $20, 000 per year in income from her part-time position as a home instructor, and $10, 000 per year in income from her part-time work at a garden center. She owned the Robbinsville property and another property in Virginia purchased with the proceeds from her medical malpractice settlement.

Defendant asserted that the marriage had ended in October 1998, the date of physical separation, and plaintiff contended that it had ended in April 2004. In his written opinion, the trial judge concluded that the parties' marriage was "irretrievably broke" on June 30, 1999, the mid-point of the year in which defendant received the proceeds of the malpractice claim settlement.

Utilizing the statutory criteria set forth in N.J.S.A. 2A:34-23.1, the judge distributed the assets and liabilities of the parties. The judge awarded plaintiff a fifty percent share of the marital coverture value of defendant's pension benefits, payable retroactive to 2004.[1] The judge found that plaintiff was "entitled to his share of defendant's pension for the years ...


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