H.P v. A.P

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5858-08T45858-08T4

H.P.,

Plaintiff-Appellant,

v.

A.P.,

Defendant-Respondent.

__________________________

 

Submitted March 8, 2010 - Decided

Before Judges Reisner and Chambers.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Salem County, FV-17-56-10.

Paras, Apy & Reiss, P.C., attorneys for appellant (Patricia E. Apy, of counsel and on the brief; Michael J. Fleres, on the brief).

Respondent has not filed a brief.

PER CURIAM

Plaintiff H.P. appeals from trial court orders dated July 20, 2009, and July 21, 2009, permitting the parties' son to attend boarding school in India. We dismiss the appeal as moot.

This appeal arises from a disagreement between a married couple over whether their eight year old son should attend boarding school in India. The parties are originally from India, have historically spent extended periods of time there, and they both have family there. The child had previously lived in India and attended school there. Two and a half months before plaintiff filed the emergent application giving rise to this appeal, defendant had paid the school tuition and bought plane tickets for himself and the son to go to India. He intended to accompany the son and stay there for several weeks while the son became acclimated to his new school. On July 19, 2009, two days before they were to leave, plaintiff filed a domestic violence complaint and sought temporary restraints to prevent defendant from taking the son to India.

After holding a testimonial hearing on July 20, 2009, entertaining additional argument on July 21, 2009, and conducting an interview with the child on July 21, Judge Tomasello denied the application for temporary restraints. He found the husband to be a credible witness concerning his good faith reasons for wanting the son to go to school in India; concerning his commitment to having the son return to the United States for the summer holidays; his willingness to buy plane tickets for plaintiff to travel to India to visit the son during the school year; and concerning the husband's lack of intent to permanently resettle the son in India. In fact, during the hearing the husband's attorney offered that defendant would buy a ticket for plaintiff to travel to India with them on July 21, but plaintiff refused saying it was "too late." The judge concluded that the dispute did not concern a proposed change of child custody, but rather concerned a disagreement between spouses over the son's education. He also did not credit plaintiff's claim that she only recently learned that the son would be attending school in India. He further concluded that there was no basis for the Family Court to intervene on an emergent basis in the decision over where the son should attend school. Accordingly, he entered an order denying restraints against the son attending boarding school in India but requiring defendant to return the child to the United States for summer vacation. That vacation would have begun in May 2010, when the boarding school year ended.

By order dated July 21, 2009, we granted plaintiff's application for emergent relief pending appeal and ordered that the child not be removed from New Jersey. We also accelerated the appeal. While the appeal was pending, plaintiff filed a divorce complaint, which she later dismissed on December 7, 2009. After receiving notification from defendant's counsel that the parties were attempting to reconcile, and defendant would not be filing a brief, we inquired of plaintiff's counsel whether plaintiff wished to pursue this appeal. Plaintiff's counsel has advised us that she has been unable to contact her client. Due to the restraints we entered pending appeal, the child did not attend school in India this school year. It is now March 2010; the 2009-2010 school year in India is virtually over, and no party has advised us that there is any issue concerning the son's education during the 2010-2011 school year.

Based on the foregoing history, we conclude that the appeal is moot. See Greenfield v. N.J. Dep't of Corrections, 382 N.J. Super. 254, 257-58 (App. Div. 2006).

Appeal dismissed.

 

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4

A-5858-08T4

RECORD IMPOUNDED

March 18, 2010