W. BRUCE OVERBAY v. MARY ELLEN OVERBAY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0026-05T10026-05T1

W. BRUCE OVERBAY,

Plaintiff-Respondent,

v.

MARY ELLEN OVERBAY,

Defendant-Appellant.

_____________________________________________________________

 

Argued May 1, 2007 - Decided August 23, 2007

Before Judges Kestin, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Chancery Division, Family Part, Somerset

County, Docket No. FM-18-1083-01.

James A. Vigliotti argued the cause for

appellant (Ventura, Miesowitz, Albano,

Keough & Warner, attorneys; Mr. Vigliotti,

of counsel and on the brief).

William Craig Dodd argued the cause for

respondent (Schenck, Price, Smith & King,

attorneys; Mr. Dodd, of counsel and on the

brief).

PER CURIAM

Defendant Mary Ellen Overbay appeals from a post-judgment Family Part order dated May 10, 2005, denying her application to modify the Pension Plan and Savings Plan benefits she is entitled to receive from plaintiff's former employer, ExxonMobil, and an order dated July 18, 2005, denying her motion for reconsideration. After reviewing the record and the applicable law in light of the contentions advanced on appeal, we affirm.

This is the second time this matter is before us. In our initial decision, we noted the parties had been married for more than thirty-one years prior to their divorce on September 17, 2002. We affirmed the trial court's decision to equally divide the marital assets and marital debts, but we remanded for reconsideration of "the appropriate amount of permanent alimony to be paid by plaintiff to defendant." Overbay v. Overbay, 376 N.J. Super. 99, 113 (App. Div. 2005). In this appeal, we must determine whether the trial court erred in denying defendant's application to modify the Amended Qualified Domestic Relations Order (QDRO) entered in connection with plaintiff's ExxonMobil Pension Plan on August 12, 2004. In addition, we must determine whether the trial court erred in denying defendant's request to be compensated for losses resulting from the delay in "the entry of the QDRO on the Pension Plan."

Following a five-day trial in May and July 2002, the trial court set forth its findings and conclusions in a seventeen-page written decision dated August 12, 2002. The trial court found that plaintiff, who was a long-term employee of ExxonMobil, had both an ExxonMobil Savings Plan and Pension Plan, which were subject to equitable distribution. In its written decision, the trial court rejected defendant's argument that her participation in the ExxonMobil Pension Plan should extend beyond April 19, 2001, the date when the divorce complaint was filed.

Plaintiff's Pension Plan. Plaintiff's pension plan with Exxon/Mobil shall be distributed under a qualified domestic relations order which awards 50% of the value of the plan interest during coverture to each of the parties. The defendant argues that she should share in all of the plaintiff's retirement rights and not just during the coverture portion. The defendant's position is that the parties had an agreement at the time of their marriage and that by giving up her career in exchange for allowing the plaintiff to pursue his career with Exxon/Mobil with the defendant to be a homemaker and mother that the coverture fraction not be applied in determining equitable distribution. In deciding this matter I don't believe that credibility is in issue. On the whole, I believe both parties testified truthfully. The court does not agree with the position taken by the defendant. The applicable case law on this subject is set forth in [Whitfield v. Whitfield, 222 N.J. Super. 36, 48 (App. Div. 1987); White v. White, 284 N.J. Super. 300, 303-04 (Ch. Div. 1995); Marx v. Marx, 265 N.J. Super. 418, 428 (Ch. Div. 1993).]

Thus, the Dual Judgment of Divorce (JOD) dated September 17, 2002, provided both the ExxonMobil Pension Plan and the ExxonMobil Savings Plan, as of April 19, 2001, were to be equally divided, and defendant's shares were to be distributed to her pursuant to QDROs, which were to be prepared by "[p]laintiff's attorney or an actuary chosen by him."

In a letter dated November 19, 2003, plaintiff's attorney advised defendant's attorney that ExxonMobil had elected to terminate plaintiff's employment and that March 26, 2004, was "the end date for his employment." The letter also explained there was "no flexibility on the March 26, 2004 end date," and it requested defendant's cooperation in finalizing the QDROs:

Mr. Overbay and I both believe it advisable for both parties to have a domestic relations order drafted, preliminarily approved by ExxonMobil, entered by the [c]ourt and qualified by ExxonMobil prior to the time of Mr. Overbay's termination in March 2004. Mr. Overbay believes that both parties will give strong consideration to taking a lump-sum benefit at the time of his termination and we will need a domestic relations order in place in advance in order for each of them to do so.

Please consult with your client and advise as soon as possible on this.

On December 24, 2003, plaintiff's attorney sent another letter to defendant's attorney together with "drafts of domestic relations orders for the ExxonMobil Pension Plan and Savings Plan." Plaintiff's attorney urged defendant's attorney to review the drafts and respond as soon as possible "as there is substantial time required for review and qualification of the [o]rder[s] by ExxonMobil's consultants . . . and it is in both parties' interests to have the orders qualified and in place before Mr. Overbay leaves ExxonMobil at the end of March." In an e-mail to defendant's attorney on January 14, 2004, plaintiff's attorney asked for the "courtesy of a response," and on February 5, 2004, plaintiff's counsel filed a notice of motion for entry of the QDROs without defendant's consent.

In a certification in opposition to plaintiff's motion, defendant stated she had no way of knowing her attorney "was not responding," and she requested additional time to determine whether the proposed QDROs were consistent with the JOD. The court denied plaintiff's motion, and the statement of reasons attached to the order dated March 19, 2004, included the following:

This is an enforcement motion, the subject of which is two QDROs. Since the parties cannot agree on the terms of the QDROs, the court orders the following relief:

Plaintiff's attorney shall ensure that Defendant receives a copy of the ExxonMobil plan on or before March 26, 2004. Plaintiff shall sign and forward to Defendant an authorization that permits the release to Defendant of any and all documentation relating to the ExxonMobil plan and to Plaintiff as their employee. This authorization is due to Defendant on or before March 26, 2004. Thereafter, Defendant may seek an attorney or an actuary, at her expense, to prepare a QDRO for Plaintiff's Savings Plan and a separate QDRO for Plaintiff's Pension [Plan], both of which should be compared to Plaintiff's attorney's QDROs that were previously submitted with his motion. This actuary or attorney is not to simply list any objections to Plaintiff's previously submitted QDROs. Family Case Management shall schedule this matter for a hearing on May 7, 2004.

Thus, the QDROs were not signed prior to the termination of plaintiff's employment. QDROs for both the Savings Plan and Pension Plan were signed by the court on June 22, 2004, and, on August 12, 2004, the parties consented to the form and entry of an Amended QDRO for ExxonMobil's Pension Plan. However, as noted in an order entered on the same date, the Amended Pension Plan QDRO was entered "without prejudice to any application [d]efendant may make with respect to severance pay and/or benefits received by [d]efendant after the parties' divorce."

In March 2005, defendant filed a notice of motion for equitable distribution of plaintiff's severance pay and his accrued vacation pay, damages for the delay in finalizing the two QDROs, and other relief, which would increase her share in the ExxonMobil Pension Plan. Based on Reinbold v. Reinbold, 311 N.J. Super. 460 (App. Div. 1998), the trial court concluded "plaintiff's severance pay was a replacement for future earnings and as such was not subject to equitable distribution." See Reinbold, supra, 311 N.J. Super. at 471 ("Severance pay . . . is a wage continuation initiative, replacing current and future earnings which would unarguably be the earner's separate property after divorce. In an alimony situation severance pay, as a replacement for income, is a fund from which alimony can be paid."). Similarly, the court determined plaintiff's vacation days were not subject to equitable distribution because the vacation days were not "related to a time prior to September 2002 and thus [do] not apply to the defendant's coverture fraction."

The court also denied defendant's claim for compensation for losses resulting from the delay in finalizing the QDROs. The court explained:

As to Defendant's assertions regarding fault for the delay and the effect of said delay on Defendant, the court finds that both parties contributed to the delay and that given both parties' delays, neither should be rewarded or penalized. Moreover, the court agrees that no fault can be ascribed to market change for value fluctuations that affects both parties since market fluctuations lie within the control of neither party. Defendant's request regarding valuation of the pension is hereby denied. Neither should be rewarded or penalized for the current value of the pension as both parties contributed to the delays and since market fluctuations lie within the control of neither party.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT ERRED BY NOT AWARDING DEFENDANT HER PROPER SHARE OF THE VARIOUS COMPONENTS OF THE PENSION PLAN AND COMPANY BENEFITS[.]

A. THE SOCIAL SECURITY ANNUITY

B. THE PRE-SOCIAL SECURITY ANNUITY

C. THE SPECIAL PROGRAM OF SEVERANCE ALLOWANCES ("SPOSA")

D. ACCRUED VACATION PAY

POINT II

THE TRIAL COURT ERRED BY, AT A MINIMUM, NOT CONDUCTING A PLENARY HEARING WITH REGARD TO THE PENSION ISSUES[.]

POINT III

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S REQUEST TO BE COMPENSATED FOR THE DELAYS IN PREPARATION OF THE PENSION QDRO AND FOR THE ARREARS CREATED THEREBY[.]

A. THE DELAYS

B. THE ARREARS AND OTHER COSTS

After reviewing the record in light of the briefs, oral argument, and the applicable law, we conclude defendant's contentions are without sufficient merit to warrant discussion in a detailed written opinion. R. 2:11-3(e)(1)(E).

The motion judge who denied defendant's post-judgment application to increase her share in the ExxonMobil Pension Plan is the same judge who tried the case in May and July 2002, and he is the same judge who entered the post-judgment order on March 19, 2004, the Savings Plan QDRO on June 22, 2004, and the Amended Pension Plan QDRO on August 12, 2004. Thus, the court was thoroughly familiar with the parties' claims and the history of the litigation. Because the trial court's factual findings and legal conclusions are fully supported by the record, we affirm substantially for the reasons stated by the trial court. Moreover, it is clear that defendant's request for an increase in her share of the pension benefits based upon "Social Security differentials" is untimely. This issue was not addressed at the time of trial, and "[i]t is well established that a R. 4:50 motion may not be used as a substitute for a timely appeal." Wausau Ins. Co. v. Prudential Prop. and Cas. Co., 312 N.J. Super. 516, 519 (App. Div. 1998).

Affirmed.

 

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A-0026-05T1

August 23, 2007