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February 11, 2014


Argued October 8, 2013 Decided


Before Judges Alvarez and Ostrer.


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FM-12-419-12.


Neal M. Pomper argued the cause for appellant (Pomper & Associates, attorneys; Mr. Pomper, on the briefs).


Daniel N. Epstein argued the cause for respondent (Epstein Arlen, LLC, attorneys; Mr. Epstein, of counsel and on the brief; Carol Matula, on the brief).


This appeal involves a post-judgment dispute over which religious private school the divorced parties' daughter should attend. Plaintiff appeals from part of a December 21, 2012, Family Part order compelling her to enroll the parties' child in a school accredited by a secular accreditation body. As the trial court did not adequately consider the child's educational, emotional and social needs in ordering that she attend an accredited school, we reverse and remand.


We shall summarize the essential facts. Both parents are Jewish. Their child, Yael,1 was born in 2005. After less than seven years of marriage, the parties divorced in June 2010 in Maryland, where they lived at the time. Plaintiff moved to New Jersey, remarried, and registered the divorce judgment here. Defendant moved to Illinois. The parties were granted joint legal custody, and plaintiff became the primary residential parent.

The crux of the dispute is that the Orthodox Hebrew day school that plaintiff selected for Yael is not accredited by a secular accreditation body, but is approved by an organization of Hebrew Day Schools. Plaintiff asserts that the school is closely associated with the synagogue she and her new husband attend, as well as her social circle. Yael attended the school in the 2011-2012 and 2012-2013 school years. Defendant objected to plaintiff's choice of school and suggested two alternatives: a yeshiva accredited by the Middle States Association of Colleges and Schools (MSACS), and a Hebrew day school that was approved by the American Montessori Academy and was seeking MSACS accreditation. He argues that his alternatives would offer a better secular education for his daughter, while also providing an appropriate religious education.

The parties' marital settlement agreement (MSA) did not expressly address where Yael would go to school. The parties agreed that "each of them shall participate as much as possible in making all significant decisions with respect to the education, [and] religious upbringing" of their daughter. They agreed to consult each other regarding substantial education decisions. They also agreed that neither parent would unilaterally make major decisions concerning Yael, including those regarding education or religious upbringing.

The parties acknowledged their lack of agreement regarding whether Yael would even attend a private school before college, but they agreed to split the costs if they did agree she would attend.

The parties do not have any present agreement for the child to attend private school. In the event the parties mutually agree that it is in the best interest of their Child to attend private school, then they shall divide the costs of private school education equally; provided, however, the parties must mutually agree to these expenses before they are incurred.


Neither party shall unreasonably withhold his or her consent.

Perhaps to enforce the prohibition on unilateral decision-making, the MSA provided that "the party who unilaterally enrolls the Child in private school shall be solely responsible for the costs thereof" unless the child had a need for a private education pursuant to Maryland law.

Religious education was addressed separately, under a provision entitled "Hebrew School education." But it also did not reflect a firm agreement about school selection. The provision stated that the parties "have agreed that all mutually agreed upon costs for Hebrew school education for their child will be shared equally. Neither party will unreasonably withhold his or her consent." In agreeing to resort to mediation if a dispute arose, the parties acknowledged that mutual agreement of the parties was required regarding "the child's education, [and] religious training."

The school issue was first raised in a pro se motion that plaintiff filed in August 2011, seeking defendant's contribution to the cost of the school she selected. Defendant cross-moved, to compel his daughter's attendance "in an accredited, mutually agreed-upon school for the 2012-2013 school year" and thereafter. This was followed by several other motions regarding the school issue. We need not review the motions in detail. Suffice it to say that in response to plaintiff's initial motion, the court denied plaintiff's motion for reimbursement, and ordered the parties to mutually agree upon an accredited school for Yael to attend in the 2012-2013 school year. The court did so without a statement of reasons, an explicit definition of "accredited," or an explanation as to why accreditation was important.2

Plaintiff did not appeal the trial court's order. The parties thereafter did not agree on an accredited school. Yael remained in the school plaintiff had selected. In the summer of 2012, the court denied without prejudice defendant's application for permission to enroll his daughter himself "in an accredited school" for the coming school year. Plaintiff opposed his motion, asserting Yael was thriving in her current school, which she claimed was accredited by an organization of Hebrew day schools. She asserted that Yael's school provided an appropriate religious education; and the school performed well on testing related to its secular curriculum.

After defendant moved for reconsideration, the court, in October 2012, required plaintiff to enroll Yael in an accredited school within ten days. The court relied upon its March 2012 order, and again, failed to specify the accrediting body, nor explain why only an accredited school would serve Yael's best interests.

Thereafter, plaintiff moved for reconsideration. The court in late December 2012 reaffirmed its order that plaintiff enroll Yael in an accredited school, but provided that such enrollment should await the 2013-2014 school year, to avoid disrupting Yael during the school year. In its statement of reasons, the court noted, "The issue of accreditation has been addressed multiple times." The court recognized "perhaps prior Orders have not stated a ruling with sufficient clarity . . . ." The court concluded, "[Yael]'s current school . . . is not an adequately accredited educational institution and Plaintiff is Ordered to remove [Yael] and enroll her in a different, accredited school, agreeable to both parties."

This appeal followed.


Plaintiff argues the court erred in requiring her to enroll Yael in an accredited school. Seizing on the trial court's statement that the school plaintiff selected was not "adequately accredited," (emphasis added), plaintiff contends that the court never defined what accreditation standards plaintiff was required to meet, notwithstanding that the court, in its December 2012 order, determined that the school did not meet those standards. Plaintiff asserts that the mandated change in school was contrary to the child's best interest. She argues that she, as the primary residential parent, retains the power to choose where Yael shall attend school, consistent with such a parent's right to determine a child's religious training. Plaintiff also asserts that the court should have held a plenary hearing to determine the child's best interests.

Defendant responds that plaintiff's appeal is untimely, as she essentially challenges the order the court initially entered in March 2012, compelling plaintiff to enroll Yael in an accredited school. He also argues that plaintiff failed to present to the trial court her argument that a plenary hearing was necessary, and that she was empowered to direct Yael's religious education. On the merits, defendant urges us to defer to the trial court's exercise of discretion. He asks us to reject plaintiff's argument that the school was accredited albeit by a national organization of Hebrew Day Schools as opposed to MSACS.



We first note our standard of review. We are required to defer to the Family Court's fact-finding because of the court's "special expertise" in family matters and the court's "superior ability to gauge the credibility of the witnesses who testify before it[.]" N.J. Div. of Youth & Family Servs. v. F.M., 211 N.J. 420, 448 (2012); see also Cesare v. Cesare, 154 N.J. 394, 413 (1998). We also "accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012).

However, we owe no special deference to the trial judge's "interpretation of the law and the legal consequences that flow from established facts[.]" Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). Also, if the "court ignores applicable standards, we are compelled to reverse and remand for further proceedings." Gotlib v. Gotlib, 399 N.J. Super. 295, 309 (App. Div. 2008). Likewise, we will not defer to the exercise of discretion that lacks a rational explanation, departs inexplicably from established policies or rests on an impermissible basis. Milne, supra, 428 N.J. Super. at 197.

We have stated that an articulation of reasons is essential to the fair resolution of a case, and the failure to perform this duty "'constitutes a disservice to the litigants, the attorneys and the appellate court.'" O'Brien v. O'Brien, 259 N.J. Super. 402, 407 (App. Div. 1992) (quoting Curtis v. Finneran, 83 N.J.563, 569-70 (1980)). SeealsoItaliano v. Rudkin, 294 N.J. Super.502, 505-07 (App. Div. 1996) (reversing and remanding where trial court failed to articulate reasons for denying post-judgment motion to modify child support and for fees); R.1:7-4(a) (requiring court in non-jury trial to "find the facts and state its conclusions of law thereon").

While we respect the Family Court's special expertise, we may exercise more extensive review of trial court findings that do not involve a testimonial hearing or assessments of witness credibility. Cf. N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382, 396 (2009) (stating that deference to Family Court conclusions is not required where "no hearing takes place, no evidence is admitted, and no findings of fact are made"). A judge may not make credibility determination or resolve genuine factual issues based on conflicting affidavits. Conforti v. Guliadis, 245 N.J. Super. 561, 565-66 (App. Div. 1991), aff'd in part and modified in part on other grounds, 128 N.J. 318 (1992). When the evidence discloses genuine material issues of fact, a Family Court's failure to conduct a plenary hearing to resolve those issues is a basis to reverse and remand for such a hearing. See, e.g., Fusco v. Fusco, 186 N.J. Super. 321, 329 (App. Div. 1982); Tancredi v. Tancredi, 101 N.J. Super. 259, 262 (App. Div. 1968), superseded by statute on other grounds, N.J.S.A. 2A:17-56.23a, as recognized in, Mallamo v. Mallamo, 280 N.J. Super. 8, 13 (App. Div. 1995).


As a threshold matter, we recognize that plaintiff failed to appeal the trial court's initial order in March 2012, mandating accreditation. However, we do not view plaintiff's appeal to be untimely. As the court itself recognized, its initial orders did not state with sufficient clarity what actions plaintiff was required to take. In March 2012, the court ordered plaintiff and defendant to enroll the child in a "mutually agreed" accredited school. The order did not specify what would happen if the parties did not agree, nor did the court specify the accrediting body the court had in mind. Of the two schools defendant recommended, one was accredited by MSACS, and the other approved by the American Montessori Academy.

Then, in August 2012, the court denied defendant's request to enroll Yael in an accredited school, perhaps leading plaintiff to believe that Yael could remain where she was. In October, the court compelled plaintiff to enroll Yael in an accredited school, but still failed to specify the accrediting body. In the December order on appeal, the court clarified in its statement of reasons that Yael's current school was not "adequately accredited." Although not explicit, we read the trial court's last order to compel Yael's enrollment in a school accredited by MSACS.

Also, given the court's obligation, as parens patriae, to protect the best interests of the child, we choose to address the merits of the court's December 2012 order. Cf. N.J. Div. of Youth & Family Servs. v. R.G., 354 N.J. Super. 202, 208-10 (App. Div. 2002) (exercising parens patriae power, and granting motion to consider notice of appeal nunc pro tunc from order terminating parental rights), certif. denied, 177 N.J. 491 (2003). As we discuss below, the court's fundamental concern in dictating that a child should attend one school instead of another is the best interests of the child.

In any event, plaintiff's motion for reconsideration "implicate[s] the substantive issues in the case[.]" Fusco v. Bd. of Educ. of City of Newark, 349 N.J. Super. 455, 461 (App. Div.), certif. denied, 174 N.J. 544 (2002). Also, "the basis for the motion judge's ruling" in the earlier orders is the same as the basis for the decision on plaintiff's motion for reconsideration. Ibid. Consequently, we address the substance of the court's order compelling Yael's enrollment in a school accredited by MSACS.




We reject plaintiff's argument that as the primary residential custodian, she was empowered to determine unilaterally Yael's religious upbringing, and, by extension, her private religious education. We need not chart the boundaries of a custodial parent's authority in this area absent an agreement of the parties, because plaintiff and defendant both agreed that neither one could act unilaterally. We apply contract principles to our interpretation of the MSA. Pacifico v. Pacifico, 190 N.J. 258, 266 (2007) (applying to property settlement agreement the "basic rule of contractual interpretation that a court must discern and implement the common intention of the parties").

We conclude the parties' intent is clear from the agreement's plain language. The MSA clearly contemplates that the parties would be obliged to confer with each other, and mutually agree on significant matters involving Yael's education and religious upbringing. They agreed to "participate as much as possible in making all significant decisions with respect to . . . [Yael's] education, [and] religious upbringing"; and they agreed not to unilaterally decide issues pertaining to those two areas. Although the MSA did state that if a party unilaterally enrolled the child in a private school, the other would bear no financial obligation, we view that provision not as an endorsement of unilateral decision-making, but as penalizing it. The MSA provided that the parties were required to mediate issues that required their mutual agreement, including religious and educational decisions.

Regrettably, the parties have been unable to agree on the choice of school. "It is axiomatic that the court should seek to advance the best interests of the child where her parents are unable to agree on the course to be followed." Asch v. Asch, 164 N.J. Super. 499, 505 (App. Div. 1978). The court's goal is more easily stated than applied:

The courts cannot choose between religions; they cannot prevent exposure to competing and pulling religious ideas and rituals. But the courts should seek to minimize, if possible, conflicting pressures placed upon a child and to give effect to the reasonable agreement and expectations of the parents concerning the child's religious upbringing before their marital relationship foundered, subject to the predominant objective of serving the child's welfare comprehensively.




Even in cases in which religious training is not added to the mix, a court tasked with resolving a dispute between divorced parents over school selection must engage in a sensitive, fact-intensive analysis focused on the best interests of the child. In Asch, we addressed a conflict between joint custodial parents who disagreed over two different private schools, one non-sectarian and the other Catholic. The separation agreement required the parties to confer on all major issues affecting the general welfare of the child, but did not specifically address their respective obligations towards secondary school costs. Id. at 501. The father, who was Jewish, objected to the mother's enrollment of the child in the Catholic school. The mother asserted that the educational program at the Catholic school was superior to the non-sectarian school preferred by the father, the school was two blocks away from her home, she wanted her daughter to attend the same school that her other daughters and her new husband's sons attended, and the school offered alternatives to religious instruction for any child who chose not to participate. Id. at 502. We remanded the matter to the trial court for further fact-finding, after concluding that the trial judge "gave no weight to the provision for 'joint custody' and allowed undue weight to be given to the mother's unilateral decision." Id. at 504.

In Levine v. Levine, 322 N.J. Super. 558 (App. Div. 1999), certif. denied, 163 N.J. 75 (2000), we addressed a dispute between two divorced parents over the choice of public school. The parents shared physical, as well as legal custody. We highlighted that a court's analysis must go beyond objective measures of a school's performance that are unconnected to the individual child's circumstances. Id. at 567. The conflict in Levine arose when the mother relocated from South Orange to Madison and wished to enroll her daughter in the Madison public schools. The parties' settlement agreement clearly contemplated the mother's relocation. It provided that the parties would "'re-address the issue of the child's schooling'" upon the mother's move. Id. at 560.

The trial court heard testimony from a child psychologist; interviewed the child, who stated her preference to remain in her current school in South Orange; and also considered data from the 1996 New Jersey School Report Card, which indicated that the South Orange school did not perform as well as the Madison school according to various measures. Id. at 563-64. The evidence demonstrated that the child was exceptionally gifted. The South Orange school was more diverse culturally and socially.

We agreed with the trial court's finding that the child should remain in her current school through the fifth grade, but concluded that the trial court mistakenly exercised its discretion in directing the child to enroll in the Madison school district for middle school and thereafter. Id. at 565. We addressed the limitations of school data:

In the context of the best interests of a child, any evaluation of a school district is inherently subjective. Just as a student cannot be summed up by IQ, verbal skills or mathematical aptitude, a school is more than its teacher-student ratio or State ranking. The age of its buildings, the number of computers or books in its library and the size of its gymnasium are not determinative of the best interest of an individual child during his or her school years. Equally, if not more important, are peer relationships, the continuity of friends and an emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity.


[Id. at 567.]


Applying these principles, we are constrained to reverse the trial court's determination that Yael should only attend a school accredited by MSACS, and to remand for the court's consideration of evidence relevant to a best interests analysis. The court has provided no rationale to support its conclusion that MSACS accreditation is essential, or to facilitate our review of that conclusion. See R. 1:7-4. Nor does the record compel the result reached. The record contains no evidence regarding the benchmarks required of a school seeking MSACS accreditation; whether the school plaintiff selected would meet those benchmarks; and whether those benchmarks are even relevant to the kind of education appropriate to Yael's needs.

Both parents agree that Yael should receive a private religious education. They also both apparently place great importance on the quality of the non-religious education Yael will receive. Her test scores indicate she is a gifted student. However, the record does not support the conclusion that Yael's secular educational needs can only be met by attending a MSACS-accredited school. If there are relevant limitations in the curriculum in one school versus another, they are not evident in the record. Moreover, on remand, in assessing Yael's best interests, the court should consider Yael's "peer relationships, the continuity of friends" as well as her "emotional attachment to school and community that will hopefully stimulate intelligence and growth to expand opportunity." Levine, supra, 322 N.J. Super. at 567.

A period of discovery may be necessary to obtain evidence about the educational options proposed, and their impact on Yael. Although we recognize that experts testified in Levine, supra, we express no opinion on whether expert testimony is necessary. We also leave it to the trial court to determine, after completion of discovery, whether there remain genuine issues of material fact that compel an evidentiary hearing.

Reversed and remanded. We do not retain jurisdiction.

1 We have used a pseudonym for the child.

2 The court did not conduct oral argument, although both parties requested it. Cf. R. 4:42-1(a)(2).

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