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Thomas A. Walkup v. Patricia A. Walkup

March 29, 2012

THOMAS A. WALKUP, PLAINTIFF-APPELLANT,
v.
PATRICIA A. WALKUP, DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FM-06-494-08. Robert J.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 27, 2012 -

Before Judges Parrillo and Hoffman.

In this post-judgment matrimonial matter, plaintiff, Thomas Walkup, appeals from an August 13, 2010 order of the Family Part denying his motion to terminate or, in the alternative, reduce his alimony obligation. Plaintiff argues the trial court erred in denying his motion, and by failing to permit discovery and schedule a plenary hearing. For the reasons that follow, we reject these arguments and affirm.

I.

The parties married in 1973 and had two children, Susan, born in 1977 and Thomas, Jr., born in 1978. By 1998, both children were emancipated. On August 12, 1998, the parties entered into an eleven-page property settlement agreement (PSA) addressing various issues, including equitable distribution and alimony. The basic terms of the agreement were negotiated with the assistance of an attorney who had previously represented the parties in various personal and business matters. Before signing the PSA, both parties retained separate counsel.

Relevant to this appeal, the PSA provided that plaintiff would pay defendant alimony of $1,000 per month. The PSA contained the following anti-Lepis*fn1 clause: "Any and all maintenance/support ceases only upon the remarriage of the Wife." A final judgment of divorce incorporating the PSA was entered on August 25, 2008.

Plaintiff worked for the Philadelphia Fire Department for twenty years, retiring in 1989 on a non-taxable disability pension of $1,975.47 per month. While working as a fireman, plaintiff also operated an extermination business. At the time the PSA was executed, plaintiff worked for the City of Millville Streets and Roads Department as a laborer. In addition to raising the children and attending to household duties, defendant assisted plaintiff in the extermination business, but was not on the payroll. As a result of her non-payroll status, defendant had minimal reportable earnings for most of the marriage. At the time of the PSA, she received $130 per week in unemployment benefits.

Under the terms of the PSA, defendant received assets having an approximate value of $175,000 and plaintiff received assets of approximately $125,000,*fn2 and defendant waived her interest in both of plaintiff's pensions. The agreement also required plaintiff to provide defendant with health insurance coverage for ten years.*fn3 This obligation would terminate upon defendant's remarriage or filing for divorce.

On June 25, 2010, plaintiff filed a motion seeking to terminate or reduce his alimony obligation, alleging changed circumstances. In support of his application, plaintiff relied primarily on two developments: his retirement from his position with the City of Millville,*fn4 effective July 31, 2010, and the resulting reduction in his income; and defendant's cohabitation with a male companion. Plaintiff claimed that health issues, specifically osteoarthritis in his knees, caused him to retire. After filing the motion and upon learning of defendant's current income level, plaintiff argued that defendant's post-PSA increase in income provided additional support for his application.

Plaintiff provided a case information statement (CIS) indicating that, upon his retirement, he will receive $1,935.32 per month from his City of Millville pension, in addition to $1,975.47 per month from his disability pension. Plaintiff also received $350,000 from his father's estate in 2007. Plaintiff listed a net worth of $711,000,*fn5 including $160,000 in a deferred compensation account.

Defendant provided a CIS indicating a 2009 gross income of $32,985.24 and that she was earning $1,304 every two weeks, or what would equate to $33,904 in annual gross income in 2010. Defendant listed a net worth of $175,476.*fn6

Defendant opposed the motion based upon the anti-Lepis provision, asserting that she gave up her interest in plaintiff's City of Philadelphia pension in return for $1,000 per month in alimony that would cease only upon her remarriage. Defendant also challenged plaintiff's assertion that he was retiring for medical reasons. On the issue of cohabitation, defendant maintained that although she resides with another man, he pays her $400 in monthly rent and ...


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