                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Diana L. Overberger,                                                               FILED
Respondent Below, Petitioner                                                  November 3, 2014
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 14-0064 (Taylor County 11-D-136)                                        OF WEST VIRGINIA


James K. Overberger,
Petitioner Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Diana L. Overberger, by counsel LaVerne Sweeney, appeals the order of the
Circuit Court of Taylor County entered December 23, 2013, that affirmed an order of the family
court, inter alia, awarding petitioner permanent alimony in the amount of $700.00 per month;
rejecting petitioner’s claim that she is unemployable; and requiring the parties’ adult son—who
resides with petitioner—to contribute to her monthly living expenses. Respondent James K.
Overberger, by counsel Raymond H. Yackel, filed a response, to which petitioner replied.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        The parties were married on November 21, 1985. They separated on November 3, 2011,
and were subsequently divorced on the ground that they were voluntarily separated for one year.1
Two children were born of the marriage. At the time of the trial in this matter, both children were
over the age of majority; the older child, Adam, resides with petitioner.

        At the time he separated from petitioner, respondent was working as a trip and event bus
driver. The family court found that respondent’s annual gross income was $40,257.00. Petitioner

       1
         Though the divorce was granted as a result of their voluntary one-year separation, the
family court also found that

       both parties are responsible for the breakdown of this marriage. [Respondent]
       admitted he had engaged in extra marital affairs, a major factor in the breakdown
       of the marriage. However, [petitioner’s] conduct of allowing the parties’ home to
       be destroyed by their children, neglect of their pets, sleeping all day[,] and staying
       up all night on the computer with friends is also a significant factor in causing the
       breakdown of the marriage.
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is fifty-seven years old and has a tenth grade education. She is a Mexican immigrant and
represents that she has a “lost or stolen” green card, which she claims significantly impairs her
ability to find employment. She previously worked in retail, at a radio station, and as a home
health worker; however, she did not work outside the home for the last fifteen years of the
parties’ marriage.

        Following their separation, respondent was ordered to make the mortgage payment on the
marital home to maintain the status quo of the parties. It is undisputed that he made all payments
directly to petitioner but that petitioner failed to pay the mortgage from October of 2012 through
April of 2013. Petitioner admitted that, out of “desperation,” she used the money for her own
personal needs and to hire divorce counsel.2 As a result, the bank foreclosed on the marital home.

         Petitioner and the parties’ son, Adam,3 presently live in an apartment that costs $500.00
per month. Petitioner requested alimony in the amount of $2,400.00 per month (the amount of
her claimed monthly expenses), having represented to the family court that she is totally disabled
and unable to work. Petitioner testified that she suffers from headaches, asthma, heart trouble,
arthritis in her hands, back problems, vision problems, and low blood sugar. The family court
found, however, that petitioner presented no medical evidence (i.e., no medical records or third-
party medical testimony) to support the assertion that she is unable to work. Petitioner further
asserted that she is ineligible to collect disability benefits because she is not a United States
citizen. The family court found that petitioner “has deliberately and intentionally not sought
employment since the separation of the parties, and that she has an obligation to contribute to her
support.” Further, although the family court acknowledged that petitioner had not worked outside
the marital home in many years, it concluded that, based upon her own testimony, she has
“excellent computer skills” and that “her health does not prevent her from finding a full time
job.” The family court also found that each of the parties “is in good physical, mental[,] and
emotional health[,]” and that “neither party has any intellectual deficiencies which prevent them
from being in the workforce.” Consequently, the family court imputed petitioner’s income above
minimum wage at the rate of $10.00 per hour (at forty hours per week), for a total yearly income
of $20,800.00, or a gross monthly income of $1,733.00. The family court further found that
petitioner’s monthly expenses of $2,400.004 include Adam’s expenses, whom the court
determined that “as an adult, should be contributing at least half of the household expenses.”

       The family court ordered respondent to pay petitioner permanent alimony in the amount
of $700.00 per month, “subject to a recoupment of pendent lite expenses, reimbursement for the
converted mortgage payments[,] and the equitable distribution payout which amount to a total of
$16,744.49. At the rate of $300 per month, . . . recoupment will take 36 months. So, [respondent]
shall pay [petitioner] $400 per month for 36 months beginning the first month following the

       2
          The family court found that “[w]hile in Court in December, 2012, [petitioner] had
already not paid three (3) of the mortgage payments on the home, but she did not advise the
Court of the same.”
       3
           Adam was twenty-one years old at the time of the August 22, 2013, trial in this matter.
       4
           Respondent’s monthly expenses were found to be $1,900.00 per month.
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entry of this order. On the 37th month and thereafter, he shall pay her $700 per month.” The
family court entered its final order on October 21, 2013, which order was affirmed by the circuit
court on December 23, 2013. This appeal followed.

       Our review of the circuit court’s order is governed by the following standard:

               “In reviewing a final order entered by a circuit court judge upon a review
       of, or upon a refusal to review, a final order of a family court judge, we review the
       findings of fact made by the family court judge under the clearly erroneous
       standard, and the application of law to the facts under an abuse of discretion
       standard. We review questions of law de novo.” Syl., Carr v. Hancock, 216
       W.Va. 474, 607 S.E.2d 803 (2004).

Syl. Pt. 1, Mayle v. Mayle, 229 W.Va. 179, 727 S.E.2d 855 (2012).

        On appeal, petitioner argues that the alimony award of $700.00 per month is unjust
because it is insufficient to meet her monthly expenses associated with food, rent, maintaining
her vehicle, and other expenses as presented before the family court. Petitioner also contends that
her alimony award should be enhanced by a “fault premium,” presumably based upon
respondent’s adulterous conduct.5 In related assignments of error, petitioner also argued that the
family court erred in rejecting her claim that she is unemployable due to her age, lack of
marketable skills, immigration status, and ill health, and further erred in concluding that the
parties’ son, Adam, should contribute to the household expenses.

       This Court has previously held that

               [q]uestions relating to alimony to and the maintenance and custody of the
       children are within the sound discretion of the court and its action with respect to
       such matters will not be disturbed on appeal unless it clearly appears that such
       discretion has been abused. Syl., Nichols v. Nichols, 160 W.Va. 514, 236 S.E.2d
       36 (1977).

Mayle, 229 W.Va. at 181, 727 S.E.2d at 858, syl. pt. 2. Furthermore, “‘a reviewing court may not
overturn a finding simply because it would have decided the case differently, and it must affirm a
finding if the circuit court’s account of the evidence is plausible in light of the record viewed in



       5
         See Syl. Pt. 4, Rogers v. Rogers, 197 W.Va. 365, 475 S.E.2d 457 (1996) (“In
appropriate circumstances, an enhancement of an award of maintenance/alimony based on the
degree of fault is justified. Enhancement of a maintenance/alimony award by a fault premium
may be awarded when additional support is required to reimburse the injured spouse for
expenses directly related to the fault or to assure that the injured spouse continues to have the
standard of living enjoyed during the marriage. A fault premium may also be applied to
discourage the fault or behavior that contributed to the dissolution of the marriage. In
determining an award of maintenance/alimony enhanced by a fault premium, the circuit court
must consider the concrete financial realities of the parties.”).
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its entirety.’ Syl. pt. 1, [in part,] In the Interest of Tiffany Marie S., 196 W.Va. 223, 470 S.E.2d
177 (1996).” Syl. Pt. 1, in part, In re Aaron H., 229 W.Va. 677, 735 S.E.2d 274 (2012).

        The family court found, based upon petitioner’s own testimony, that she has “excellent
computer skills” and that “her health does not prevent her from finding a full time job.” Indeed,
with respect to both parties, the family court expressly found that both are “in good physical,
mental[,] and emotional health[,]” and that “neither party has any intellectual deficiencies which
prevent them from being in the workforce.” See W.Va. Code § 48-6-301(b) (setting forth factors
court shall consider in determining amount of spousal support to be awarded). Though she
denied having any marketable skills and claimed to be unable to work due to her immigration
status and various undocumented health problems, petitioner offered no objective evidence to
refute the family court’s finding that she is employable and “has a legal obligation to contribute
to her own support.” Rather, the family court concluded that petitioner “has deliberately and
intentionally not sought employment since the separation of the parties[;]” has an “attitude of
entitlement[;]” and “refus[es] to be gainfully employed . . . .” This Court has stated that “[i]t is
the role of the [factfinder], and not a court on appeal . . . , to determine the credibility of
witnesses.” State ex rel. Corbin v. Haines, 218 W.Va. 315, 322, 624 S.E.2d 752, 759 (2005). See
State v. Guthrie, 173 W.Va. 290, 295, 315 S.E.2d 397, 402 (1984) (“The trial judge heard the
testimony and was in the best position to evaluate the credibility of witnesses.”).

       Moreover, although petitioner argues that the alimony award should be enhanced based,
presumably, upon respondent’s adulterous conduct during the marriage, petitioner fails to
acknowledge that the parties’ divorce was granted on the ground that they were voluntarily
separated for a period of one year. The family court also specifically found that both petitioner
and respondent engaged in behavior that contributed to the dissolution of the marriage. See n.1,
supra. Given these findings by the family court, we find petitioner’s argument that the alimony
award should have been enhanced by a “fault premium” to be without merit.

        Finally, with regard to the parties’ son, Adam, petitioner contends that the family court
erred in concluding that he should be required to contribute one-half of petitioner’s expenses.
Petitioner argues that Adam is unemployable because he was severely traumatized by his father’s
adulterous behavior, “his father’s pornography stash, and his failed relationship with
respondent.” Adam testified that he had been admitted to a psychiatric facility for several days in
2012 and had previously been incarcerated. He further testified that he has had difficulty holding
down a job. Petitioner argues that respondent failed to rebut the evidence that Adam is unable to
work.

        Based upon our review of the record—and in particular, Adam’s testimony before the
family court—we find that that the family court did not err in concluding that Adam should
contribute one-half of petitioner’s expenses. Notwithstanding petitioner’s argument to the
contrary, the evidence does not demonstrate that Adam is incapable of obtaining and maintaining
gainful employment. Adam was twenty-one years old at the time of the trial in this matter and
there was no evidence presented that either his mental or physical health precluded him from
working. Rather, he testified, “I have not had a job last more than a month. I don’t put that on my
brain, or my employers[,] or anybody. If anything I put that on the universe. And maybe I’m just
not suppose [sic] to work.” Given that petitioner has pointed to no evidence of record

                                                  4

demonstrating that Adam is unable to work, we find no error in that portion of the circuit court’s
order that concludes that he should contribute to the expenses of the household in which he
resides with his petitioner.

       For the foregoing reasons, we affirm.

                                                                                        Affirmed.

ISSUED: November 3, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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