KRISTIN BRUCIA GAMBLE v. JEREMY GAMBLE (2013)

Defendant Jeremy Gamble appeals from part of the October 17, 2012 Family Part order that denied his motion to modify a provision in a Property Settlement Agreement (PSA) setting a parenting time schedule.   We affirm.

Defendant and plaintiff married in July 2004, had a son in May 2007, and divorced in July 2009.   Their July 9, 2009 PSA, which was incorporated into the July 28, 2009 final judgment of divorce, contained a detailed parenting time schedule that included parenting time when the son began attending school.

In September 2012, when the son began attending school, defendant filed a motion to modify the PSA's parenting time schedule provision to grant him an additional overnight visit every other Monday during the school year.   Defendant argued that a modification was in his son's best interests because the child had expressed a desire to spend more time with his father, and the son could be driven to school on Tuesday morning rather than take the school bus.   It was undisputed, however, that defendant did not exercise all the parenting time the PSA allotted him.

In an October 17, 2012 written decision, the motion judge denied the motion without a hearing, finding that defendant failed to make a prima facie showing of substantial changed circumstances to warrant modifying the PSA's parenting time provision.   The judge determined that the child's alleged expressed desire to spend more time with his father did not satisfy defendant's burden.   In fact, the PSA's parenting time schedule contemplated the son attending school.

On appeal, defendant argues that “substantial” changed circumstances is the wrong standard.   Although we agree, we nonetheless conclude that the judge properly denied the motion.

A party seeking to modify a divorce judgment incorporating a PSA that provides for custody or parenting time must show changed circumstances and that the agreement is now not in the child's best interests.  Abouzahr v. Matera–Abouzahr, 361 N.J.Super. 135, 152 (App.Div.), certif. denied, 178 N.J. 34 (2003).   Although the current parenting time schedule in this case was agreed by the parties before the child began school, the agreement anticipated that eventuality and provided a parenting time schedule that reflected the child's school activities.   We are satisfied defendant failed to make out a prima facie case of any changed circumstances warranting a modification of the PSA's parenting time provision, and also failed to show that the prevailing provision is now not in his son's best interests.

Plaintiff's request for counsel fees and costs for this appeal can be presented to the trial judge pursuant to Rule 2:11–4 and Rule 2:11–5.

Affirmed.

PER CURIAM