No Constitutional Right to Have “Ability to Pay” Experts Appointed at Public Expense

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.