DIANA CHIARO v. RICHARD CHIARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2168-09T3

DIANA CHIARO,

Plaintiff-Respondent,

v.

RICHARD CHIARO,

Defendant-Appellant.

_______________________________

November 24, 2010

Submitted: November 4, 2010 - Decided:

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FM-13-1567-06C.

Law Office of Ira M. Senoff, LLC, attorneys for appellant (Krysta L. Berquist, of counsel and on the brief).

Diana Chiaro, respondent pro se.

PER CURIAM

In this post-judgment matrimonial action, defendant, Richard Chiaro, appeals from a November 20, 2009 order denying his request to change custody and parenting time with the parties' four-year old daughter. We affirm.

The parties were married for approximately two-and-one-half years, had one child together, and were divorced on October 30, 2007. As part of the judgment of divorce, the parties executed a consent order that established joint custody and parenting time for their daughter. Plaintiff was designated as the primary residential parent and the consent order outlined an elaborate schedule of parenting time.

On November 20, 2009, the court conducted oral argument on defendant's motion to change custody and parenting time.1 Defendant argued that changed circumstances existed because he moved into a larger home that could accommodate his daughter. As a result, he requested a fifty-fifty residential custody of their daughter. Plaintiff argued that an extra bathroom and bedroom did not constitute changed circumstances. Plaintiff contended that defendant "is asking to uproot this child from everything she knows, from her home that she lives in . . . [twenty-eight] days of the month, from the school that she's been attending since she was [seventeen] months old."

Judge Robert Coogan concluded that defendant failed to establish a prima facie case of changed circumstances. In an oral opinion on November 20, 2009 Judge Coogan enforced the parties' original custody and parenting time agreement and denied defendant's motion.

On appeal, defendant argues that the original custody and parenting time agreement is no longer fair, he established a prima facie case of changed circumstances warranting a plenary hearing, and the judge neglected to consider the best interests of the child. We disagree.

While "New Jersey has long espoused a policy favoring the use of consensual agreements to resolve marital controversies," Konzelman v. Konzelman, 158 N.J. 185, 193 (1999), custody and visitation orders are subject to modification at any time "upon a showing of a material change in circumstances." Hoy v. Willis, 165 N.J. Super. 265, 275-76 (App. Div. 1978). The party seeking a modification has the burden to show it is warranted. Mastropole v. Mastropole, 181 N.J. Super. 130, 136 (App. Div. 1981) (citing Beck v. Beck, 86 N.J. 480, 496, n.8 (1981); Mimkon v. Ford, 66 N.J. 426, 438 (1975); M.P. v. S.P., 169 N.J. Super. 425, 431 (App. Div. 1979); Sheehan v. Sheehan, 51 N.J. Super. 276, 287 (App. Div.), certif. denied. 28 N.J. 147 (1958)). After a careful review of the record, we conclude that defendant failed to establish a prima facie case of changed circumstances. We affirm substantially for the reasons expressed by Judge Coogan in his thoughtful and detailed oral opinion rendered November 20, 2009.

1 In defendant's initial motion he requested forty-six separate items. Plaintiff filed a cross motion for various forms of relief. The issues on appeal, however, pertain only to custody and parenting time.