Schochet v. Schochet, 435 N.J. Super. 542 (App. Div. 2014). In Pasqua v. Council, 186 N.J. 127 (2006), the Supreme Court ruled that “the appointment of counsel to assist parents found to be indigent and facing incarceration at child support enforcement hearings” was constitutionally required. Plaintiff here, a divorced father who was over $250,000 in arrears on his alimony and child support obligations, allegedly due to the fact that he has been unable to earn an income sufficient to pay those sums, faced an “ability to pay” hearing under Rule 1:10-3. He had already been incarcerated for non-support until the Supreme Court stayed the incarceration order. And, he had been given counsel at public expense. Relying on Pasqua, plaintiff sought to have experts appointed at public expense to testify as to his employability at the ability to pay hearing. The Family Part denied that request. Plaintiff filed an emergent application, and the Appellate Division granted leave to appeal. In an opinion by Judge Espinosa, the Appellate Division affirmed the Family Part’s decision.
Judge Espinosa emphasized the significant difference between appointing counsel, as in Pasqua, and appointing experts. As Pasqua stated, there is a high risk of an erroneous determination and wrongful incarceration” without counsel. That same concern is not present if appointed experts are denied. The ability to pay hearing under Rule 1:10-3 is not “a plenary hearing to decide the appropriate amount of support an obligor should pay” (emphasis in original). That sum was already determined. Nor is the ability to pay hearing a substitute for an appeal, or for a motion to modify obligations due to changed circumstances. The only issue is whether the obligor had the means to pay and did not and, if so, to coerce the obligor to pay. Judge Espinosa included a useful discussion of Rule 1:10-3 hearings and their coercive purpose.
Family Part judges routinely evaluate, without expert evidence, a party’s ability to pay. Plaintiff’s request for the appointment of experts therefore did not meet the Pasqua test.
I am very thankful that the opinion was published and can be used as precedent.
While, I seemingly ‘lost’ on the question that was asked (cost of am employment expert), I feel that I won on the much bigger issue which caused the case to occur.
Now there is FINALLY a published opinion which goes through the specific information that must be collected and used at an “Ability-to-Comply” hearing.
Further, the main reason that they denied my request is that they said it is too much information and not relevant. By saying this, the court helps to reinforce that the question asked at such a hearing is whether a debtor has the ability to comply on that date and NOT has the debtor done every possible thing on the planet to try and resume the highest possible income possible.
It states in the opinion that a good faith effort is needed and therefore ‘expert’ testimony isn’t necessary.
Having spent the last two and a half years in and out of the Bergen County Jail for the crime of being un/under-employed (ie: not being able to pay $2,000 a week in alimony and child support), I hope that this ruling will finally ‘free’ me from this cruel unfair system.