SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0382-19T1

F.P.,

1

Plaintiff-Appellant,

v.

H.L.,

Defendant-Respondent.

________________________

Argued2 October 2, 2020 – Decided

Before Judges Sabatino and Gooden Brown.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Somerset County, 

Docket No. FM-18-0380-17.

Charles C. Rifici, argued the cause for appellant 

(Rotolo Karch Law, attorneys; Charles C. Rifici, on the 

briefs).

1

 Pursuant to Rule 1:38-3(d)(9) and (10), we identify the parties by initials to 

protect their privacy. 

2

 At the request of the parties, the oral argument was conducted with the 

assistance of interpreters.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

November 5, 2020
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H.L., respondent, argued the cause pro se. 

PER CURIAM

In this post-judgment matrimonial matter, plaintiff/ex-husband appeals 

from an August 28, 2019 Family Part order denying his request to use his address

in Bridgewater, instead of defendant/ex-wife's address in Bridgewater, as the 

residence of the parties' children for school enrollment purposes for the 2019 to 

2020 school year. For the reasons that follow, we dismiss the appeal as moot.

3

The parties married in 2008 and have two children, a boy born June 2008, 

and a girl born September 2013. During the marriage, the parties resided on 

Partridge Drive in Bridgewater (the marital residence). In September 2016, 

defendant left the marital residence with the children, moved to an undisclosed 

domestic violence shelter, filed a domestic violence complaint against plaintiff, 

and obtained a temporary restraining order (TRO) under the Prevention of 

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. On February 1, 

2017, a final restraining order (FRO) was entered in defendant's favor, which 

order was amended on February 24, 2017. Pursuant to the FRO, defendant was 

3

 While this appeal was pending, plaintiff filed a motion to strike portions of 

defendant's merits brief as "outside and/or unsupported by the record" presented 

in the trial court. By our decision today, we also deny as moot plaintiff's motion 

to strike.
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granted temporary custody of the children and designated the parent of primary 

residence (PPR), with defendant designated the parent of alternate residence

(PAR).

4

About a month after defendant filed the domestic violence complaint, on 

October 12, 2016, plaintiff filed a complaint for divorce, as a result of which a 

judgment of divorce (JOD) was entered on July 25, 2018, incorporating a 

handwritten settlement agreement dated July 25, 2018, and a typed stipulation 

dated July 23, 2018. The stipulation acknowledged that "[t]he parties agree[d 

to j]oint [l]egal [c]ustody" of the children and that "[p]endente lite[,]" defendant 

had been the PPR "per [c]ourt [o]rders of [February 24, 2017]5and [April 27, 

4

 In awarding temporary custody under the PDVA, "[t]he court shall presume 

that the best interests of the child are served by an award of custody to the nonabusive parent." N.J.S.A. 2C:25-29(b)(11). 

5

 The February 24, 2017 order noted that while "the FRO grant[ed d]efendant 

primary residential custody" of the children pendente lite, "no [PPR] has yet 

been formally designated" and would be subject to resolution of the matrimonial 

matter in which custody was a disputed issue. See R.K. v. F.K., 437 N.J. Super. 

58, 64-65 (App. Div. 2014) (holding that while N.J.S.A. 2C:25-29(b)(11) 

requires the domestic violence court to "presume that the best interests of the 

child are served by an award of custody to the non-abusive parent[,]" a "different 

statutory scheme applies to custody determinations in divorce trials . . . . which 

addresses domestic violence as one of several factors requiring consideration." 

(citing N.J.S.A. 9:2-4)). 

 
4

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2018]."6 The settlement agreement reiterated that "[t]he parties agree[d] to 

shared joint legal custody[,]" and specified that "[t]he parties shall share joint 

physical custody on an equal basis or . . . a [fifty-fifty] basis." 

Regarding the children's general welfare, the agreement provided that the 

parties would "confer and agree on all major decisions, not [already] agreed to 

[herein]." As to the children's education, the agreement expressly stated:

9. The parties agree the children of the marriage shall 

be educated in the Bridgewater School District through 

high school.

10. At least one parent shall remain residing in 

Bridgewater through high school so that the children 

can attend public school in Bridgewater through high 

school.

 

The Bridgewater-Raritan Regional School District is comprised of seven 

primary schools, two intermediate schools, one middle school, and one high 

school. Notably, the agreement was silent as to which parent's address would 

be utilized to determine which of the district's primary and intermediate schools 

the children would attend. However, the agreement did contemplate a change 

of address for defendant by providing that in exchange for defendant's 

"promise[] to vacate the shelter no later than [three] months from [the date of 

6

 The April 27, 2018 order is not included in the record supplied by the parties.
5

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the] agreement," plaintiff's father would "loan" defendant $12,000 "payable 

[once] defendant [was] under contract for affordable housing in Bridgewater." 

Both parties were represented by counsel and acknowledged entering into the 

agreement "freely and knowingly[,]" with "no coercion" or "duress." 

Throughout the divorce proceedings, plaintiff resided in the marital 

residence, which was the children's address of record for school enrollment

purposes, while defendant resided in the shelter with the children. After the 

divorce, plaintiff remained in the marital residence, and defendant moved to a 

condominium in Bridgewater in August 2018. After she moved, without 

consulting plaintiff, defendant used her new address to register the children in 

school, which resulted in the children being enrolled for the 2018 to 2019 school 

year in different schools from the schools associated with the marital residence.

Based on defendant's new address, the parties' son would begin 

intermediate school at Eisenhower Intermediate School, instead of Hillside 

Intermediate School. Their daughter would begin kindergarten at Milltown 

Primary School, instead of Hamilton Primary School, where her brother had just 

left. As a result, in September 2018, plaintiff filed an order to show cause to 

remove the children from the schools defendant had enrolled them in and return 

them to the schools associated with his address. On September 27, 2018,
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plaintiff's application for injunctive relief was denied and converted to a motion,

which was heard by Judge Bradford Bury on October 19, 2018. 

Following oral argument, Judge Bury issued his decision on the record, 

which was memorialized in an October 19, 2018 order, granting "[p]laintiff's 

request to find [d]efendant in violation of litigant's rights for willfully violating 

and intentionally modifying the children's education institution without consent 

or a court [o]rder." Judge Bury found that defendant falsely created a 

misimpression with the school district as to her PPR status and the children's 

resulting primary residence. According to the judge, there was no PPR 

designation in the settlement agreement, and thus "neither party" could 

unilaterally "dictate" where the children attended school. Further, the judge 

noted that while the parties agreed that the children would attend the 

"Bridgewater . . . school system through the end of high school," there was no 

agreement about "which particular school or schools." 

In that regard, Judge Bury, who had also presided over the divorce 

proceedings, expressly rejected plaintiff's contention that there was a "status 

quo" in place in relation to which address would be used to determine the 

children's school, and that the burden was on defendant to justify a change. The 

judge explained that plaintiff "[got] no presumption" that the children would 
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attend the schools associated with his address. Instead, both parents were 

obligated to consult with each other, particularly since both children "were now 

going to attend . . . new schools,"7and "they would equally have to present to 

the court reasons . . . why one school . . . would be more . . . beneficial to the 

[children's] . . . best interests over the other school." 

The judge concluded that because the decision regarding the "particular 

. . . schools" constituted "a major decision," plaintiff "should have been 

consulted" in accordance with the settlement agreement. Nonetheless, the judge 

refused to "change the schools" and "disrupt[]" the children's education, noting 

that their son was excelling academically. Instead, the judge ordered defendant 

to pay plaintiff's counsel fees, and directed that if "the parties [were] unable to 

agree upon the [children's] school[s] . . . for the 2019 [to] 2020 school year by 

May 1, 2019, . . . the party seeking a change of school[s] shall file a motion . . . 

by May 30, 2019."

8

7

 The judge was referring to the fact that the parties' son was leaving primary 

school and beginning intermediate school, and their daughter was beginning 

primary school.

8

 Defendant moved for reconsideration of Judge Bury's October 19 order, which 

was denied on December 14, 2018, and plaintiff filed a notice of appeal from 

Judge Bury's October 19 order, which was administratively dismissed for failure 

to prosecute on June 4, 2019. Judge Bury's December 14, 2018 order also denied 
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In July 2019, nearly two months after the May 30, 2019 deadline, plaintiff 

moved to use his address as the children's residence for school enrollment 

purposes for the 2019 to 2020 school year, as well as other unrelated relief. 

Defendant opposed the motion and cross-moved to be designated the PPR, as 

well as other relief. To support his motion, plaintiff submitted a certification 

reiterating that the burden of proof was on defendant to establish changed 

circumstances. Plaintiff also averred that the schools associated with his address 

were "superior to" defendant's, and submitted school rankings in support. 

Regarding the children's best interests, plaintiff stated that although their son 

had excelled academically, as evidenced by the report cards submitted for the 

2018 to 2019 and earlier school years, he had "struggle[d] . . . socially" without 

his friends, leading to him gaining an "unhealthy [forty] pounds []in a year[]." 

Regarding their daughter, according to plaintiff, she would "benefit[] by

attending Hamilton," which "[was] ranked higher than Milltown" because she 

"struggle[d] with reading th[e] past year." Defendant countered in a certification 

plaintiff's cross-motion, which was not "germane" to defendant's reconsideration 

motion or pertinent to the issues raised in this appeal, but scheduled plaintiff's 

cross-motion "as a separate stand[-]alone [m]otion[,]" which was subsequently 

adjudicated on January 18, 2019. 
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that there was not much difference between the schools, a contention plaintiff 

agreed with in his reply certification. 

Oral argument was conducted by Judge Kimarie Rahill on August 9, 2019, 

during which plaintiff's counsel requested as detailed in the papers that the judge 

conduct a plenary hearing and interview the parties' son to determine the 

children's schooling. Without conducting a child interview or a plenary hearing, 

in an August 28, 2019 order, Judge Rahill denied plaintiff's request to designate 

his address for school enrollment purposes for the 2019 to 2020 school year. In 

an accompanying statement of reasons, relying on Levine v. Levine, 322 N.J. 

Super. 558 (App. Div. 1999),9Judge Rahill determined that "a plenary hearing 

[was] not necessary because there [was] no genuine dispute of material fact 

regarding the parties' [settlement agreement]" and, other than plaintiff's 

unsubstantiated "conclusions," there was no "prima facie showing that one 

school would be in the best interest of the children as opposed to their current 

school." The judge also determined that a child interview was not necessary 

because "[t]he [c]ourt [was] not changing custody" and "decline[d] to use [its]

9

 See Levine, 322 N.J. Super. at 566-67 (holding that where joint custodians 

cannot agree on a choice of schools, the issue must be decided consistent with 

the child's "best interests" and, in that context, "any evaluation of a school 

district is inherently subjective" and involves "more than its teacher-student 

ratio or State ranking.").
10 A-0382-19T1

discretion to interview the children regarding their choice of school." See R.

5:8-6 (authorizing the court to conduct "an in camera interview with the 

child(ren)" as "part of [a] custody hearing").

In rejecting plaintiff's contention that not using his address "disrupted the 

'status quo'" and impermissibly placed the burden of proof on him to establish 

changed circumstances, like Judge Bury, Judge Rahill pointed out that the 

settlement agreement "does not provide a presumption on either side to use an 

address for school purposes," and "only require[d] the parties to enroll the 

children into the Bridgewater school district without specifying which 

school[s]." Further, Judge Rahill noted that in "requir[ing] the children to 

remain in their then-current schools[,]" Judge Bury had "indicated[] there was 

no status quo" and neither child had been "uprooted from an existing school." 

Because there was no "showing that either child [was] truly suffering in their 

current school[,]" Judge Rahill concluded there was no "change of 

circumstances since Judge Bury's [o]rder[] to warrant the extreme remedy of 

displacing the children from their current schools." Additionally, according to 

Judge Rahill, plaintiff failed to consider that their son "[would] be attending 

middle school for the 2020-2021 school year with all the children from both 
11 A-0382-19T1

intermediate schools because both intermediate schools filter into a single 

middle school." This appeal followed. 

On appeal, plaintiff renews the same arguments rejected by both Judge 

Rahill and Judge Bury. However, we need not address plaintiff's arguments 

because the dispute is moot. "Mootness is a threshold justiciability 

determination rooted in the notion that judicial power is to be exercised only 

when a party is immediately threatened with harm." Betancourt v. Trinitas 

Hosp., 415 N.J. Super. 301, 311 (App. Div. 2010). "It is firmly established that 

controversies which have become moot or academic prior to judicial resolution 

ordinarily will be dismissed." N.J. Div. of Youth & Family Servs. v. W.F., 434 

N.J. Super. 288, 297 (App. Div. 2014) (quoting Cinque v. N.J. Dep't of Corrs., 

261 N.J. Super. 242, 243 (App. Div. 1993)). "[F]or reasons of judicial economy 

and restraint, courts will not decide cases in which the issue is hypothetical, [or] 

a judgment cannot grant effective relief . . . ." Cinque, 261 N.J. Super. at 243 

(quoting Anderson v. Sills, 143 N.J. Super. 432, 437-38 (Ch. Div. 1976)). 

Likewise, "[a]n issue is 'moot' when the decision sought in a matter, when 

rendered, can have no practical effect on the existing controversy." Greenfield 

v. N.J. Dep't of Corrs., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (citation 

omitted). 
12 A-0382-19T1

Here, even if plaintiff prevailed in this appeal, our judgment would have 

no practical effect because the 2019 to 2020 school year has concluded, and any 

assessment of the children's best interests in the choice of schools for the 2020 

to 2021 school year cannot be made on this record. More importantly, the 

parties' son is now attending the only middle school in the school district, 

rendering the registration address as to him irrelevant. Therefore, the appeal is 

moot. "Further, this is not an appeal where the issues raised 'involve significant 

matters of public policy, are extremely important, and undoubtedly will recur in 

cases that are likely to be mooted before adjudication.'" W.F., 434 N.J. Super. 

at 297 (quoting In re N.N., 146 N.J. 112, 124 (1996)). Thus, we must dismiss 

the appeal. See N.J. Div. of Youth & Family Servs. v. J.C., 423 N.J. Super. 259, 

263 (App. Div. 2011).

Dismissed.