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Original Wordprocessor Version This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5727-04T25727-04T2 JEANETTE M. NOLAN, Plaintiff-Respondent, v. ROBERT K. FLECK, Defendant-Appellant. _______________________________________

Submitted March 1, 2006 - Decided April 17, 2006 Before Judges Fall and Grall. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Warren County, FD-21-350-03. Carter, Van Rensselaer and Caldwell, attorneys for appellant (William Caldwell, on the brief). Jeanette M. Nolan, respondent pro se. PER CURIAM Robert K. Fleck and Jeanette M. Nolan have one child, born of a dating relationship, who will be three years old in April 2006. Fleck appeals from an order denying his application to modify a consent order so as to establish an equal division of parenting time. Because Fleck did not make any showing that a modification would be in the best interests of the child, we affirm. This litigation commenced on May 23, 2003, when the child was less than two months old. Fleck filed a
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verified complaint and order to show cause alleging that Nolan had refused to allow him and his mother to see the child on Mother's Day and had attempted to impose unrealistic and unfair restrictions on his parenting time without discussing the issues. His requests included a temporary injunction restraining Nolan from interfering with his access to the child and a permanent order establishing legal and physical custody and parenting time. The judge set a return date for June 6, 2003. On June 6, 2003, the judge established a schedule for parenting time pending plenary hearing and authorized Fleck to obtain a "best interest evaluation" if he chose to do so. The parties were able to resolve the issues of child support and paternity without a hearing, and on June 25, 2003, the court entered a consent order establishing paternity and child support. An order setting discovery deadlines, a schedule for holiday visitation and requiring the parties to attend mediation was entered on November 12, 2003. By March 8, 2004, the parties resolved all issues and executed a consent order, which was signed by the judge on March 26, 2004. The parties agreed to share joint legal custody without designating a parent of primary residence at "th[at] time." Fleck was to have the child on alternate weekends from Friday evening until Monday morning and weekday parenting time, also alternating on a weekly basis -- one weekday overnight during the first week and two weekday overnights during the second week. The precise hours for transfer of the child varied with Fleck's seasonal work schedule, and the agreement specified the schedule between April 1, 2004 and March 1, 2005. The agreement provided for the parents to share holidays, vacations and information and decision-making about the child's activities, progress and health on a long-term basis. It provided a detailed schedule for the number of days during the week that the child would be in day care. It also obligated the parties to "seek the availability of the other parent for child care before making alternate arrangements" in the event of unavailability during parenting time. Paragraph nine of the parties' seventeen paragraph agreement is central to the dispute on this appeal. It provides: The above parenting plan is made with the parties' current residences and work schedules in mind and with the understanding that both parties will be available to spend the above-mentioned times with the child. The above-stated parenting plan shall be reviewed by the parties by March 1, 2005, to determine if it is still in the best interests of the child. [Emphasis added.] Paragraph sixteen of the consent order memorialized the parties' agreement "to use a mediator to assist them in resolving major disputes, if any, before filing an application with the Court."

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On January 24, 2005, Fleck moved to "expand parenting time." In support of that motion, he certified: his parenting skills were as good as if not "greater than" those of the child's mother; she refused to extend his parenting time; his son is benefiting from spending time with him and his development of a "strong bond with both parents" is "crucial"; "joint physical parenting time" is in "the best interest" of the child; and Nolan did not consent when he asked to take the child from his scheduled day care without prior notice. He requested a hearing "[i]n the event that the court is not willing to order [the relief] on the basis of the moving papers." Nolan opposed the motion. She certified that the child was healthy, happy and developing properly and that in her view their agreement did not call for modification unless a change was in their child's best interests. On February 25, 2005, the judge denied Fleck's motion without prejudice. She found that Nolan did not violate the agreement by declining to allow Fleck to take the child from day care at an unscheduled time and concluded that Fleck had not shown a change in the circumstances of the child or either parent. Fleck filed a second motion which the court denied on May 20, 2005. Ten of the eighteen substantive paragraphs of his supporting certification recited events prior to the parties reaching the comprehensive agreement incorporated in the consent order of March 26, 2004. Fleck acknowledged that under the present arrangement for parenting time their child spent approximately 55% of his time with his mother and 45% of his time with his father. He further certified: every day he spends with his son is precious to both of them; an equal sharing of the child's time would be in his son's best interest; and he always intended to have equal time with his son. Judge O'Connor found and concluded: The Consent Order does not say that there will be an expansion of parenting time on or after March 1, 2005. The Consent Order does state[] that the parenting time arrangement would be reviewed in order to determine if the arrangement is still in the best interest of the child. For that matter, a review of the parenting time arrangement might reveal that it would be in the best interest of the child to reduce, not expand, the father's parenting time. In any event, the father does not say how the current parenting time arrangement is not in the child's best interest. On appeal Fleck argues: I. THE COURT BELOW ERRED BY FAILING TO CONDUCT A PLENARY HEARING UNDER R. 5:8-6 WHEN A GENUINE DISPUTE OVER THE INTERPRETATION OF THE INTERIM AGREEMENT

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EXISTED BETWEEN THE PARTIES. II. GIVEN THE LONG STANDING PRESUMPTION IN NEW JERSEY THAT BOTH PARENTS ARE FIT AND THAT EQUAL ACCESS TO CHILDREN IS A FUNDAMENTAL RIGHT THAT SHOULD NOT BE INTERFERED WITH BY THE COURTS UNLESS THERE IS AN AFFIRMATIVE SHOWING OTHERWISE, THEN PHYSICAL CUSTODY OF NONSCHOOL AGE CHILDREN SHOULD PRESUMPTIVELY BE EQUAL. (Not Argued Below) Our review of the record in light of the issues raised convinces us that the arguments are without sufficient merit to warrant extended discussion in a written decision. R. 2:11-3(e)(1)(E). We add a brief explanation for that conclusion. This court ordinarily does not consider arguments that have not been raised below. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); New Jersey Farm Bureau, Inc. v. Twp. of E. Amwell, 380 N.J. Super. 325, 333 (App. Div.), certif. denied, 185 N.J. 596 (2005). We see no reason to depart from that sound rule of appellate practice in order to address the claim raised in Point II. The trial judge did not abuse her broad discretion in concluding that Fleck failed to articulate a sufficient basis for a plenary hearing on his application to extend his parenting time. See Cesare v. Cesare, 154 N.J. 394, 411-13 (1998). Judgments concerning custody and parenting time, "whether reached by consent or adjudication, embod[y] a best interests determination." Todd v. Sheridan, 268 N.J. Super. 387, 398 (App. Div. 1993). When such a judgment has been made, the "moving party must bear the threshold burden of showing changed circumstances which would affect the welfare of the chil[d]." Ibid. Bare assertions are inadequate. Mastropole v. Mastropole, 181 N.J. Super. 130, 137 (App. Div. 1981). This is not a case in which there were certifications that included significant conflicts about important facts relevant to the child's best interests, which would require a hearing. Whitfield v. Whitfield, 315 N.J. Super. 1, 12 (App. Div. 1998). Rather, Fleck simply asserted that more time with him would be beneficial to the child. Contrary to Fleck's claim, paragraph nine of the parties' agreement cannot be fairly read to require relitigation of custody and parenting time without a preliminary showing based on the best interests of the child. Paragraph nine, in plain language, incorporates the best interest standard applied by our courts. It is an agreement
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by the parties to review the parenting plan "to determine if it is still in the best interests of the child." As Judge O'Connor found, the plain language obligates a party seeking modification to demonstrate that the plan is no longer consistent with the child's best interest. In conclusion, we note that nothing in this record indicates that Fleck honored his obligation under paragraph sixteen of the parties' agreement to mediate the dispute prior to filing an application with the court. The judge could have denied his application for a plenary hearing on that basis alone. See Whitfield, supra, 315 N.J. Super. at 13-14. Affirmed.

This order erroneously designated Nolan as the plaintiff and Fleck as the defendant. Because all subsequent orders designated Nolan as the plaintiff and Fleck as the defendant, we use those designations to avoid confusion. Like the certifications below, the appendix on appeal emphasizes events prior to the entry of the March 26, 2004 consent order. This focus on the past is unfortunate. First, the events prior to the entry of the consent order have limited relevance to subsequent changes in circumstances. Second, because this consent order requires a high degree of cooperation, a focus on prior events is likely to be counter-productive. Further, we must note our disapproval of page thirty-six of Fleck's appendix, which reads "The Fleck Family Album" and precedes a copy of a police report dated nearly one year prior to the consent order. This "Title Page" and the gratuitous sarcasm it conveys has no place in a submission to a court of this state, especially in a matter involving a subject as serious and consequential as the best interest of a young child. We refer counsel to R. 2:6-1 which addresses the contents of an appendix on appeal. (continued) (continued) 9 A-5727-04T2 April 17, 2006 0x01 graphic

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