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Mia M. Wernega, F/K/A Mia M. Volpa v. Edward J. Volpa

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2012

MIA M. WERNEGA, F/K/A MIA M. VOLPA, PLAINTIFF-APPELLANT,
v.
EDWARD J. VOLPA, DEFENDANT-RESPONDENT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Gloucester County, Docket No. FM-08-844-94.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 28, 2012

Before Judges Axelrad and Sapp-Peterson.

In this post-judgment matrimonial matter, plaintiff mother appeals from a March 30, 2012 order granting defendant father's cross-motion seeking an order directing her "to cooperate with the Rutgers University Financial Aid Office" and requiring her to "fully cooperate in [their daughter's] effort to obtain financial aid for [her] education and provide Rutgers with any and all information required." The ruling was precipitated by father's certification that their daughter, who attended Rutgers University in Camden, received financial aid and "because [she] had resided with Plaintiff for most of 2011," the financial aid office needed plaintiff to complete their daughter's 2012 Free Application for Federal Student Aid application (FAFSA) for her to receive financial aid for tuition. Mother responded that their daughter did not live with her for the majority of the twelve-month period prior to the date of the application as required by 20 U.S.C.A. § 1087oo(f)(1)(A), that she would not qualify for financial assistance based on father's income, that the completed form contained inaccuracies, and that she would not sign a form with false and misleading information.

It is undisputed that mother was the parent of primary residence (PPR) since the parties' divorce in l994, but the daughter moved in with father on June 30, 2011. She entered her junior year at Rutgers-Camden in September 2011. On September 14, 2011, father filed a motion requesting, among other relief, that he be designated the PPR and child support be adjusted, which was granted by order of December 23, 2011, filed February 10, 2012. Mother filed a motion for reconsideration, which was denied by the March 30, 2012 order.

On March 3, 2012, the daughter submitted a FAFSA for financial aid for the 2012-13 school year, providing mother's financial information from 2011. Mother would not sign the form because, among other reasons, the daughter had actually resided with father for eight of the preceding twelve months. The form was returned because it was not signed by mother. Father filed the aforementioned cross-motion. He argued that, for purposes of the financial aid application, mother remained the PPR until the order transferring custody was signed, namely, December 23, 20ll. Mother appealed the March 30, 2012 order.

In father's brief, he included a final notice from the Rutgers Office of Financial Aid dated July 14, 2012, advising the FAFSA was rejected by the federal processor for lack of signatures. Mother advised at oral argument that she did not sign the FAFSA form and was not contacted by Rutgers for any information. No motion was filed by father in the trial court to enforce the judgment pending appeal, R. 2:9-1(a), or to us for remand to the trial court, R. 2:9-1(b).

Mother argued that her appeal was not moot because she did not want to be in contempt for failing to sign the FAFSA and did not want her "failure to fully comply" with the order to have a potential adverse impact on "her in any future college contribution application made by [father] under Newburgh v. Arrigo" as stated in the order. She additionally urged that our interpretation of 20 U.S.C.A. § 1087oo(f)(l)(A) was a matter of significant public importance.

We disagree. Mother did not sign the FAFSA form, in part, because her daughter did not physically reside with her for the majority of the twelve-month period preceding the date of the financial aid application. The daughter apparently did not qualify for such aid based on father's 2011 financial information. The form was not filed and she did not receive financial assistance for the 2012-13 school year at Rutgers, which is her senior year. To that extent, the appeal is moot. See Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975) (recognizing it is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed); Plainfield v. Dep't of Health, 412 N.J. Super. 466, 483-84 (App. Div.) (holding that a court should dismiss a case as moot if the decision "can have no practical effect" on the controversy) (internal quotation marks and citations omitted), certif. denied, 203 N.J. 93 (2010).

Moreover, the judge performed no analysis of the parties' respective positions as to whether the language "with whom the student resided for the greater portion of the 12-month period preceding the date of the application" is intended to be interpreted in the legal sense of a court order designating the PPR or actual physical residence. To the contrary, at the end of oral argument on March 30, 2012, when father's attorney asked the court to direct mother to sign the FAFSA form, the court declined to do so, stating:

Well, I don't know if you're going to get her cooperation to be honest with you, I really don't. But you know the student loan aspect of it is you know I think she should do it. It's for that year that she was residing based on those rules. My view of this is that I'm just going to order that she cooperate with this documentation for Rutgers Financial Aid Office and that she's also to fully cooperate with the efforts to obtain financial aid for the child's education [and] provide them with any and all information required. Plaintiff's failure to fully comply may be used against her in any future college contribution application made by the defendant under Newburgh.

If mother had been contacted by Rutgers Financial Aid Office, she would have advised of her daughter's actual residence with her until June 30, 2011, and, if requested, would have been given the opportunity to provide her financial information for 2011. As mother was never contacted, she cannot be deemed to have failed to "fully comply."

We discern no basis to issue an advisory opinion in the present matter. See State v. Rose, 206 N.J. 141, 189 (2011) ("The notion that a court of appeals willy-nilly can decide issues unnecessary to the outcome of the case results in the wholesale issuance of advisory opinions, a practice our judicial decision-making system categorically rejects."); DeVesa v. Dorsey, 13 N.J. 420, 428 (1993) (recognizing it is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed).

We are also not persuaded that this is a matter of significant public importance warranting our determination at this juncture. See Zirger v. Gen. Accident Ins. Co., 144 N.J. 327, 330 (1996) (holding that on occasion courts have decided an otherwise moot appeal "where the underlying issue is one of substantial importance, likely to reoccur but capable of evading review"). Accord In re Conroy, 98 N.J. 321, 342 (1985) (addressing the withholding or withdrawing of life sustaining treatment); State v. Perricone, 37 N.J. 463, 469 (considering blood transfusion for infant son of Jehovah's Witnesses), cert. denied, 371 U.S. 890, 83 S. Ct. 189, 9 L. Ed. 2d (1962); Advance Elec. Co., Inc. v. Montgomery Twp. Bd. of Educ., 351 N.J. Super. 160, 166 (App. Div.) (considering a school board contract and subcontract), certif. denied, 174 N.J. 364 (2002).

Accordingly, the appeal is dismissed as moot.

20121213

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