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Picone v. Losapio


April 27, 2010


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1088-05N.

Per curiam.


Submitted November 30, 2009

Before Judges Rodríguez and Reisner.

Patrice LoSapio (formerly Picone), appeals from a portion of the February 13, 2009 post-divorce judgment order. We affirm.

LoSapio and Robert Picone were divorced on May 18, 2006, after thirteen years of marriage. At that time, they entered into a property settlement agreement (PSA), which was incorporated into the Dual Final Judgment of Divorce. Two children were born of the marriage, who are now sixteen and fourteen years old. Picone was designated as the parent of primary residence and LoSapio as the parent of alternate residence. The parties agreed that LoSapio would enjoy parenting time as follows:

1. Alternate weekends from Thursday after school to Sunday at 8 pm;

2. One (1) overnight on the "off-week;"

3. Holidays and Special Days by agreement or the Court Holiday schedule by default; and

4. Three (3) non-consecutive weeks of vacation time.

In addition, Picone was required to notify LoSapio whenever he was going to be out of town without the children. LoSapio would then have the right of first refusal to exercise additional parenting time with the children.

Eventually, LoSapio noticed that she was exercising more parenting time with the children than was initially contemplated at the time of the execution of the PSA. As a result, she moved to be awarded residential custody of the children. Judge E. David Millard denied the application.

Two years later, LoSapio moved for the same relief, calculating that, from execution of the PSA through October 2008, she had enjoyed parenting time with the children at least fifty-one percent of the time. She also sought an order to find Picone in violation of litigant's rights for his failure to comply with page (three), paragraph one (1) of a May 25, 2007 post-judgment order, which required Picone to provide LoSapio with the dates and times of the children's medical appointments, and to confer with LoSapio on medical and psychological issues pertaining to the minor children.

Judge Arnold B. Goldman essentially granted LoSapio's application to enforce page three, paragraph one of the May 25, 2007 order, but denied the rest of the motion. He also entered two additional orders specifically authorizing LoSapio to have access to the medical and school records for the children.

Judge Goldman ordered that "[LoSapio] will receive the same treatment as if she were the parent of primary residence." The judge issued a written opinion, which states in relevant part:

The Court is aware that custody orders are not considered "final orders" and are always subject to modification. Wilke v. Culp, 196 N.J. Super. 487, 494 (App. Div. 1984).

"A judgment, whether reached by consent or adjudication, embodies a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). To change custody terms provided in a judgment, order or consent order, the movant must first show evidence of changed circumstances and then show that a change is in the child's best interests. Id. Where the movant seeks a change in a de facto custody arrangement, the movant need only show that it is in the child's best interests to change custody. Id.

[LoSapio] asserts that she has established a prima facie case of changed circumstances warranting modification of the current custody arrangement. [LoSapio's] position is that she had the children, de facto, for [fifty-one percent] of the time between 2006 to the present. [Picone] disputes this claim. He points out that the terms of the PSA contemplated that there would be additional parenting time to [LoSapio]. [Paragraph five (5)] of his certification demonstrates that that PSA contemplated at least 165 overnights or [forty-five percent] of the parenting time would be with [LoSapio]. [LoSapio] never disputes this averment, but rather argues that she now has [fifty-one percent] of the time. The Court has reviewed the prior transcript of the hearing before Judge Millard, which took place March 30, 2007. At that time the identical argument was made, namely that [Picone] was away more than originally contemplated. [LoSapio] argues nothing new, except another year at more or less the same parenting time.

There does exist a factual dispute between the parties as to the amount of time spent with each. Assuming [LoSapio's] numbers are entirely correct, there is a difference of merely [six percent] or (twenty-one] days in parenting time from the time originally contemplated in the PSA. This does not, in the Court's opinion, constitute a material change in circumstances to warrant a transfer of legal custody. Moreover, one must consider the rationale set forth in Judge Millard's March 30, 2007 Order. Paragraph 1 of that Order finds that the fact that [LoSapio] is exercising her right to first refusal as contemplated in the PSA is not a change of circumstances. Furthermore, it must be pointed out that [LoSapio's] sole argument for a change of legal custody is the amount of time allegedly spent with her. She has not focused on any of the other factors which must be considered. For example, the children appear to be doing well in the current status. There is therefore a disincentive to alter present arrangements.

[LoSapio] appears to be inordinately fixated on the time that she is spending with them, as if it has become an agenda in itself. This very fixation on the amount of time spent with the children, to the exclusion of all else, is the primary focus of the Court in rejecting her application, and denying even a plenary hearing at this time.

LoSapio appeals, contending that: (1) the judge erred, without a plenary hearing, in ruling that she had failed to prove that a change of circumstances had occurred with the custody and parenting schedule; and (2) the judge erred when denying the application for child support because a prima facie showing of change in circumstances in the custody and parenting provisions of the PSA had been established which warranted a plenary hearing. We disagree.

From our careful review of the motion record, we conclude that LoSapio has not met her burden of proving that there exists a substantial change in circumstances that affect the welfare of the children. Hand v. Hand, 391 N.J. Super. 102, 105 (App. Div. 2007). There is no showing that the de facto increase of her parenting time affects the children's safety, happiness, or welfare. Kinsella v. Kinsella, 150 N.J. 276, 317 (1997). We, therefore, agree with Judge Goldman's analysis and affirm substantially for the reasons expressed in his February 13, 2009 written decision.

We do not reach LoSapio's contention that if this matter should be remanded, it should be assigned to a different judge.

There is no basis on the record for a remand.



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