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Scheibe v. McNulty

April 16, 2010


On appeal from the Superior Court of New Jersey, Law Division, Family Part, Burlington County, Docket No. FM-03-430-05.

Per curiam.


Argued: March 17, 2010

Before Judges Axelrad, Fisher and Espinosa.

In this post-judgment matrimonial matter, plaintiff David Scheibe (father) appeals from the April 3, 2009 order of the Family Part, arguing the court overstepped its bounds and misinterpreted the amount of parenting time he should be afforded under the parties' Property Settlement Agreement (PSA) and inappropriately denied him reconsideration. Defendant Becky McNulty (mother) cross-appeals the court's denial of her counsel fee applications in the January 9 and April 3, 2009 orders. We affirm on both the appeal and cross-appeal.

The parties were married on June 22, 1991. They have three children who are currently ages fifteen and one-half, fourteen and one-half, and eleven. On August 5, 2004, the parties entered into a PSA in which they agreed to share joint legal custody and engage in shared parenting, designating mother as the parent of primary residence and father as the parent of alternate residence. The specific terms of their parenting time were set forth, in pertinent part, as follows:

Husband shall enjoy reasonable and liberal parenting time with the minor children born of the marriage. Husband shall have parenting time with the children of approximately 104 overnights per year. During the school year, that parenting time shall consist of alternate weekends beginning on Friday at 6:00 p.m. with Husband taking the children to school on Monday morning if school is in session or by returning the children to Wife's home at 8:00 a.m. Also during the school year, Husband shall have mid-week, non-overnight parenting time twice each week, the designation of which days shall be arranged by the parties taking into account the children's activities and the parties' schedules. Additionally, the parties shall share the children's school vacations during the school year on an equal basis with a division being resolved annually by the parties prior to the commencement of each school year. During the summer, Husband shall also have parenting time on two midweek overnights per week. Additionally, during the summer, each party shall be permitted up to fourteen nights of vacation parenting time. . . . The parties reserve to later discussions how they shall share parenting time for holidays. . . . In the event that the parties are unable to agree on how they shall share parenting time for holidays . . . they now hereby agree that their sharing of parenting time for holidays . . . shall be consistent with the Burlington County holiday schedule, a copy of which is attached hereto as Exhibit "A" or such other schedule as the parties might, in writing, agree. The parties agree to be flexible with regard to this schedule.

The above parenting schedules are designed to act as guidelines. The parties are free to modify the parenting times, so long as it is done with mutual consultation and consent.

The PSA also included a one page holiday, special occasion and vacation schedule providing, for example, that mother was entitled to a seven-day "February unofficial school break" which was "[o]pen to father if mother uses time in January instead" and father was entitled to Easter Day, "[a]vailable to mother by request and agreement," and to Spring Break. Mother certified that the parties followed this schedule since their separation in 2003. The PSA was incorporated into a final judgment of divorce that was entered on December 16, 2004. Both parties have since remarried.

In July 2007, father filed a motion to enforce the PSA by allowing him, in part, to have overnight parenting time on Monday nights. He certified as follows:

5. Although the PSA sets forth a general schedule, it does not include a regular schedule allowing me to exercise 104 annual overnights without Mrs. McNulty being willing to frequently allow me to exercise additional parenting time. If the PSA were to be followed literally, the children and I are only permitted approximately 94 overnights each year. Therefore, Mrs. McNulty and I agreed outside of the PSA to discuss and agree upon adding regular parenting time days to the basic PSA schedule. We agreed to act cooperatively and be flexible.

He requested the court to "enforce our Property Settlement Agreement by ordering a schedule allowing me to exercise at least 104 scheduled overnights per year by modifying the current regular parenting time schedule to accomplish this goal" and modify the future exercise of summer vacation parenting time. Father also sought for the court to order that the Burlington County holiday schedule, which the parties had established as a default schedule, supersede the parties' holiday schedule. He claimed the parties' schedule was becoming problematic based upon its lack of specificity, and mother's ability to take the children out of school for an extra week for an unofficial school break in February was becoming at odds with the children's academic best interests.

In response, mother certified that father actually had the children for 108 overnights per year and supplied a chart detailing his overnight visits during the school year and summer weekends, summer week days, and summer and winter vacation time. She also presented a chart detailing father's requested parenting time schedule, which she claimed would total approximately 133 overnights. Mother explained that the parties had determined the holiday schedule set forth in their PSA based upon their work demands and available holiday time and requested they continue to follow that schedule.

By order of September 14, 2007, the court denied father's request for additional parenting time and noted that "[t]he parties shall continue observing the parenting time schedule provided in their PSA." The court further denied father's motion to have the Burlington County holiday schedule supersede the parties' holiday schedule and noted that "[t]he parties shall continue to split holidays as provided by the schedule in their PSA. Defendant may continue her practice of taking a February vacation with the children, provided ...

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