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Does a New Jersey Court Have to Provide Counsel and Experts to Litigants Who Do Not Pay Court Ordered Support Before Incarcerating Them?

Most times, when courts award alimony and child support the Payors comply with their court ordered support obligations.  In some instances, unfortunately, compliance with such orders wains and the issue of enforcement of court ordered support obligations must be addressed by the Court.  New Jersey Court Rule 1:10-3 provides a vehicle for the Payee to seek enforcement of support orders through an application for the “Enforcement of Litigant’s Rights” and provides a plethora of coercive vehicles to a court to compel compliance with court ordered support obligations.  Clearly the most effective of these coercive vehicles is the ability to incarcerate the payor until compliance in the form of payment is  forth coming.

Our Supreme Court in the case of Pasqua v. Council, 186 N.J. 127 (2006), found that an indigent person is entitled to be represented by counsel in proceedings to enforce child support obligations, as there is a real threat of incarceration if the payor is found in wilful non-compliance.    Although the Pasqua matter deals with the constitutional right to counsel in a matter enforcing a child support obligation, it is clear that the basis for this decision was not predicated on the fact that the support was for the benefit of a child.  Rather, the rationale of the Court’s decision was that the the Due Process clauses of our Federal and State Constitutions mandated a right to counsel when the likely outcome of a civil hearing was incarceration.

Against this backdrop, the Appellate Division recently reviewed the interlocutory appeal of a payor litigant who was defending himself against a Rule 1:10-3 application to enforce litigant’s rights that sought to force him to meet his child support obligation and to incarcerate him until he complies.  Although the payor spouse was not found to be indigent, the trial court appointed counsel to represent him.   Before the commencement of the hearing, the litigant requested that the Court direct the State to pay for two experts on his behalf: (1) an employment expert; and (2) an accounting expert.

In reviewing the specific application made by this litigant in this specific matter, the Appellate Division noted in the matter of Ariel Schochet v. Sharon Schochet,     N.J. Super.    (App Div 2014), that the trial court had appointed counsel for the payor spouse without a finding that he was indigent, which is a required element for the court to provide litigants with state appointed and funded counsel.  The issue before the court conducting an “ability to pay ” hearing, the Appellate Division points out, is not whether the payor spouse is paying the correct level of support, but whether the payor’s failure to pay the amount of court ordered support is “willful” or “excusable”.  The Appellate Division found that there is no Constitutional right to experts to opine on the facts of this case because the real issue before the trial court is not whether the amount of support that the payor was ordered to pay under the circumstances, but  whether could be paid by the payor.  The appellate court noted that Supreme Court Directive #15-08 provides Constitutional safeguards to litigants facing incarceration by requiring a Probation Department investigation into the assets and liabilities, employment status and expenses of the non-compliant payor.  Moreover, the 2008 Directive provides suggested queries to assist the court determine why support wasn’t paid, how much the obligor can pay that day, and to ensure that the obligor has a plan to address support arrears.  The Court is required to make specific factual findings about the payer’s ability to meet child support obligations and the court’s justification for ordering incarceration.    The Appellate Division noted that the court did not need to provide the payor spouse with experts as to his ability to pay because the information before the court is the kind of information that family court judges regularly deal with without the need for expert opinion.

If you have any issue with regard to enforcement of court ordered support obligations, the law office of James P. Yudes, A Professional Corporation, can assist you.