JENNIFER TORCASIO VS. DANIEL TORCASIO (FM-08-0742-15, GLOUCESTER COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2585-17T2
JENNIFER TORCASIO,
n/k/a JENNIFER JENNNINGS,
Plaintiff-Respondent,
v.
DANIEL TORCASIO,
Defendant-Appellant.
_____________________________
Argued January 22, 2019 – Decided February 5, 2019
Before Judges Messano and Gooden Brown.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Gloucester County,
Docket No. FM-08-0742-15.
Michelle L. Ferreri argued the cause for appellant
(Cordell Law, LLP, attorneys; Michelle L. Ferreri, on
the briefs).
Jennifer Jennings, respondent, argued the cause pro se.
PER CURIAM
Defendant Daniel Torcasio and plaintiff Jennifer Jennings were married
in 2005, and three children were born of the marriage — twin boys, in 2009, and
a third son in 2011. Divorce proceedings began, and, following eleven days of
trial, on April 28, 2017, the Family Part judge entered an oral decision on the
record.1 Both parties lived in Monroe Township and worked in the same school
system, which the children had always attended. Plaintiff expressed a desire to
relocate to another town, Marlton, and remove the children from the Monroe
Township School District; defendant objected.
The judge ordered continued "joint and legal custody" of the children.
Relevant to this appeal, the judge stated:
For this school year coming up . . . [,] which is
'18 – '19,[2] [plaintiff] may choose the children's school
provided that the school she chooses is in a town . . .
contiguous to Monroe.
....
So I am ordering that [plaintiff] could choose
where she wishes to live. . . . But if she does [choose
Marlton], the children will not be attending school in
her town . . . .
1
Transcripts of the trial were not provided.
2
In subsequent colloquy with defense counsel, the judge corrected her mistake
and clarified she was ruling as to the 2017-18 school year.
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The judge further stated that "with [thirty] days['] notice" to defendant, plaintiff
would be permitted to "reside in a town contiguous to Monroe" and "enroll her
children in that school."
Regarding the 2018-19 school year, the judge mused that "should
[plaintiff] wish to make [a] move to one of the contiguous towns and transfer
the children out of Monroe . . . , well the longer she waits the harder it would be
to do . . . ." The judge added: "So it needs to be on a motion and I can't predict
how I would look at it . . . ." The judge also said: "Who knows what changed
circumstances there would be, but I'm not going to create any inferences or
direct orders as I am for the [2017-18] school year . . . ." The judge filed a
judgment of divorce on May 5, 2017, which, by its terms provided "an
[a]mended [f]inal [j]udgment of [d]ivorce with [the] [c]ourt's decision w[ould]
be separately filed."
On June 19, 2017, plaintiff moved to enroll the children in a parochial
school in Berlin, in Camden County, for the 2017-18 school year. Defendant
filed a cross-motion. On July 21, 2017, the judge entered an order denying
plaintiff's motion. The judge's written statement of reasons provided:
The [c]ourt's decision of April 28, 2017 allowed
[p]laintiff to pick the school for the children as long as
she picked a school contiguous to Williamstown
(Monroe Township), where the former marital home is
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located and [defendant] currently resides. The [c]ourt
finds [the Camden County school] is not contiguous to
Williamstown. . . . The [c]ourt further noted that it
could not require . . . the parties' children to attend a
parochial school, unless both parties consented to the
same . . . . Here, [d]efendant does not consent to the
children attending this school. Therefore, the [c]ourt
must deny [plaintiff's] request.
[(Emphasis in original).]
The judge also granted that portion of defendant's cross-motion regarding
the children's schooling for the 2017-18 school year.
Defendant's request . . . to register the minor
children for the 2017-[]18 school year in Monroe
Township School District pursuant to the [c]ourt's
decision of April 28, 2017 IS GRANTED. . . . The
[c]ourt finds that . . . the decision cannot be delayed any
further. Additionally, [plaintiff] had significant time to
choose a school contiguous to Williamstown, yet, she
did not do so. Additionally, she has not suggested the
local parochial school or explain why not. . . . [T]he
[c]ourt did and continues to find that continuing the
children's education in public schools in Monroe
Township is not contrary to the children's best interest.
[(Emphasis in original).]
The judge added that plaintiff must make a request by June 15, 2018 if she
decided to enroll the children in a school district in a town contiguous to Monroe
Township for the 2018-19 school year.
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Apparently, without notice to the parties, the judge filed an amended dual
final judgment of divorce on December 29, 2017. Paragraph 8(c) provided:
For the 2018-[]19 school year, [p]laintiff may select the
school the children will attend in the event she relocates
to a town that is contiguous to Monroe Township,
however her selection is subject to requirement that she
file her request by motion, providing notice of same no
later than the end of the 2017-[]18 school year . . . . She
need not show a change of circumstance, as the court
placed on the record it's finding that the children's
attendance in the school system where the parties both
teach, may not be in the children's best interest. . . .
[T]he children's best interest was consistent with
[plaintiff's] concern; however, . . . proximity to
[defendant's] home was essential to successful co-
parenting . . . . The court required a notice of motion
for the [p]laintiff's request . . . for the 2018-19 school
year because the court cannot predict all of the
children's circumstances in 2018 with respect to their
best interests and school of attendance.
Defendant filed a timely appeal, after which the judge filed a timely
amplification of the reasons supporting her decision. See R. 2:5-1(b). The judge
stated:
[T]he court added orally on the record a . . .
condition that [plaintiff] file a motion . . . should she
seek to exercise her school designation election for
2018-[]19.[] The court intended to give the [p]laintiff[]
adequate time to make this important decision, which
the court found to be up to the beginning of the 2018
school year. Therefore, in adding the condition of
[p]laintiff [having to file] a motion regarding the 2018-
[]19 school year, the court did not intend to remove her
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election and revert to the otherwise requisite change of
circumstance showing in order to seek judicial approval
for a change of the children's school district.
Before us, the parties acknowledged that plaintiff filed a motion in the
Family Part to move the children to a different school while the appeal was
pending, but the judge properly refused to consider the motion because of a lack
of jurisdiction. See R. 2:9-1(a). We also were advised at oral argument that the
children were enrolled and remain enrolled in the same school district they have
always attended for the 2018-19 school year.
Defendant contends paragraph 8(c) deviates from the judge's oral findings
in support of the original judgment of divorce. He further argues that issues
regarding the children's schooling in 2018-19 and beyond were not ripe for
adjudication when the amended final judgment of divorce was filed in December
2017.
We agree that the judge's findings and conclusions were confusing at best
and in conflict at worst. Unfortunately, they provided little certainty to guide
the parties' litigation conduct after December 2017. However, the issues raised
by the inclusion of paragraph 8(c) in the final judgment are now moot.
"Mootness is a threshold justiciability determination rooted in the notion
that judicial power is to be exercised only when a party is immediately
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threatened with harm." Betancourt v. Trinitas Hosp., 415 N.J. Super. 301, 311
(App. Div. 2010) (citing Jackson v. Dep't of Corr., 335 N.J. Super. 227, 231
(App. Div. 2000)). "Courts normally will not decide issues when a controversy
no longer exists, and the disputed issues have become moot." Ibid. (citing
DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring)).
Here, paragraph 8(c) dealt only with school choice for the 2018-19 school
year, which is now half over. The children remain in the same school district
they have always attended, which was defendant's desired outcome.
The parties advise that because of their ages, the twins will age out of their
school prior to the 2019-20 school year. We anticipate that unless plaintiff or
defendant otherwise put aside their differences and agree, the issue of school
choice will once again be before the Family Part for resolution.
The appeal is dismissed as moot.
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