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Carpenito v. Giglio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


October 26, 2010

VINCENT CARPENITO, PLAINTIFF-APPELLANT,
v.
DONNA GIGLIO, F/K/A DONNA CARPENITO, DEFENDANT-RESPONDENT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-1230-07C.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 13, 2010

Before Judges Skillman and Espinosa.

Plaintiff Vincent Carpenito (Carpenito) appeals from an order denying his motion for reconsideration. In that motion, he asked the court to reconsider its denial of his motion to enforce litigant's rights and request for counsel fees as well as the court's award of counsel fees to defendant Donna Giglio (Giglio). We affirm.

The salient facts relevant to this appeal can be summarized as follows.

The parties were married in September 2001. They had one child, a daughter, born in February 2003, and were divorced in April 2008. The Dual Final Judgment of Divorce incorporated the parties' property settlement agreement (PSA). The parties' agreement regarding transportation of their daughter for parenting-time is contained in Paragraph 2(a) of the PSA, which provides in pertinent part:

The parties shall share in the transportation of the Child and shall agree upon a meeting place that is as close as practicable to a point that is halfway between the residence of the Husband and the Wife. The Husband shall pick up the Child from the Wife at the Wife's residence and the Husband shall deliver the Child to the same place at the conclusion of the weekend visitation, while [W]ife resides at former marital residence.

In June 2009, Carpenito filed a motion to enforce litigant's rights that sought, in part, an order by the court declaring that the Cracker Barrel Restaurant in Hamilton should be the meeting place for parenting-time pursuant to this provision. In his supporting certification, Carpenito stated that, as of March 1, 2009, he resided in Edgewater Park in Burlington County. At the time of their divorce, Giglio resided in the former marital residence in Toms River. At the time this motion was filed, Giglio resided in Freehold.

The trial court modified Paragraph 2(a) of the PSA to provide that the designated meeting place would be either the Howell or Freehold Township police department, and allowed Carpenito to choose between the two locations. After Carpenito filed a motion for reconsideration, the court set forth its reasons:

The basis for my Order . . . had to do with the fact that the parties were living in relatively close proximity to each other and that Mr. Carpenito moved substantially out of the area. I considered that to be a substantial change in circumstances and I believe that the fair result was for him to then bear the lion's share of the transportation because he had left the area. That was what I considered to be fair, and that's what I still consider to be fair. I still consider that to have been a substantial change in circumstances that warranted the ruling that I made.

The court also denied Carpenito's request for counsel fees and awarded Giglio $1200 toward counsel fees on the initial motion and $1250 toward counsel fees on the motion for reconsideration. In this appeal, Carpenito presents the following issues for our consideration:

POINT I.

WHEN ENFORCING A PROPERTY SETTLEMENT AGREEMENT, THE EQUITABLE, FREELY NEGOTIATED PROVISIONS MUST BE ENFORCED AND NOT MODIFIED BY THE COURT. IN THIS MATTER THE JUDGE CHANGED THE NEGOTIATED DROP OFF POINT AND EXPANDED WORK RELATED DAYCARE TO INCLUDE RESPONDENT'S SCHOOL SCHEDULE.

POINT II.

COUNSEL FEES AWARDED TO RESPONDENT WERE INAPPROPRIATE AS THE MOTIONS FILED WERE NECESSARY DUE TO THE DELAY OF THE RESPONDENT.

After carefully considering the record and briefs, we are satisfied that these arguments are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), beyond the following brief comments.

In Schulze v. Morris, 361 N.J. Super. 419, 426 (App. Div. 2003), we recognized that a residential custodial parent's relocation of a child within New Jersey "may have a significant impact upon the relationship between the child and the non- residential custodial parent that may constitute a substantial change of circumstances warranting modification of the custodial and parenting-time arrangement." Here, it was the non- residential parent who elected to relocate, causing "a significant impact" on the transportation burden associated with his exercise of parenting-time. The trial court did not abuse its discretion in concluding that this was a substantial change in circumstances warranting the modification of the PSA and in offering Carpenito the choice of two police departments as a meeting place.

Turning to the issue of counsel fees, "fee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 444 (2001); Rendine v. Pantzer, 141 N.J. 292, 317 (1995). We discern no such abuse of discretion here.

Affirmed.

20101026

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