Child-Support Delinquents Jailed Without Counsel, Lawyer Says

Mary Pat Gallagher, New Jersey Law Journal

April 14, 2014

There is "widespread noncompliance" with a 2006 New Jersey Supreme Court ruling that prohibited locking up indigent people for child support arrears without court-appointed counsel, says the attorney who won that precedent.

David Perry Davis wrote on April 10 to Justice Barry Albin about his concern that judges are not carrying out the changes that were put in place by Pasqua v. Council, 186 N.J. 127 (2006), to protect delinquents' constitutional rights.

He claims that within the past five months, the Supreme Court has had to step in about half a dozen times and summarily reverse incarceration orders where the Appellate Division declined.

Full story to be posted later today.

Read more: http://www.njlawjournal.com/id=1202651003619/Child-Support-Delinquents-Jailed-Without-Counsel%2C-Lawyer-Says#ixzz2ythSr3KI

 

Court Takes Steps To Protect Rights of Poor Child-Support Delinquents

Mary Pat Gallagher, New Jersey Law Journal

April 14, 2014 

The New Jersey judiciary took action on Monday to ensure compliance with procedures put in place to protect the constitutional rights of poor people who fall behind in paying court-ordered child support.

The Administrative Office of the Courts issued a statewide directive, No. 02-14, accompanied by a revised form that judges must now complete in child support enforcement proceedings in order to be certain that they have made the required findings.

In addition, training is being provided to judges and staff.

The directive states it was prompted by a “significant increase” in the number of emergent appeals to both the Appellate Division and the Supreme Court, brought by those who were being locked up for not paying child support.

It is the latest attempt by the court system to comply with Pasqua v. Council, 186 N.J. 127 (2006), which held that before a court can lock up an indigent person to coerce payment of child support arrears, it has to find an ability to pay the support and a willful refusal to do so.

Pasqua also required court-appointed counsel as a matter of due process under the state and federal constitutions.

David Perry Davis, the Pennington solo who litigated Pasqua, calls the new directive "a step in the right direction" and he applauds the judiciary for showing sensitivity to the issue.

But he says he "does not believe this cures the ongoing problem" because it does not make it clear enough to judges what they have been doing wrong.

Davis wrote to the court on April 10, complaining of "widespread noncompliance" with its dictate that no one should be locked up to force payment unless the judge finds, based on evidence in the record that there there is a current ability to pay the particular amount set by the court as a condition for release.

He claimed that judges are still improperly sending poor people to jail for nonpayment of support to the extent that within the past five months, the Supreme Court has had to step in about half a dozen times and summarily reverse incarceration orders where the Appellate Division declined to do so.

He cited an example in Bergen County, where a Family Part judge ordered Jeremy Crump into a work release program for failure to pay child support. At the time of the Feb. 21, 2012, order, Crump owed support arrears of $22,274 to one woman with whom he had a child and $25,779 to another woman.

Crump appeared in court on a Tuesday, after being held in jail over a holiday weekend following his arrest four days earlier on a child-support warrant. Without making any finding about Crump’s ability to pay, the judge issued two orders incarcerating him in the county’s work-release program, each with a $2,500 release amount.

The Appellate Division granted an emergent appeal on Feb. 29, 2012, and stayed the incarceration until it could be decided. On March 14 of this year, Judges Clarkson Fisher, Jr., Ellen Koblitz and Amy O’Connor held that Crump’s hearing did not pass constitutional muster but dismissed the appeal as moot without explaining how or when it became moot. They stated only that Crump was no longer affected by what happened at the 2012 hearing.

Crump, apparently believing that he was still affected by the pair of incarceration orders, turned to the Supreme Court for emergent relief, seeking a stay of the two orders.

Chief Justice Stuart Rabner granted it on March 20 and on March 26, the entire court ordered that the orders could not be used to incarcerate Crump.

Davis said in his letter that many judges seem to think that all they need to find to justify incarceration is the capability to provide the required support. But that is not the complete standard. The release amount must be based on “competent evidence of a current ability to pay that amount,” an aspect that is “consistently ignored by the lower court,” he said.

The new directive does not make that clear, Davis says. It states that the court must find “the “obligor’s ability to comply with the current obligation.”

He also finds the form problematic. For example, the finding that incarceration is necessary to coerce compliance, on line 4c, indicates that one of the grounds­willful underemployment­can be based on on education, job skills and lack of medical problems.

The April 10 letter was addressed to Justice Barry Albin and copied to Administrative Director of the Courts Glenn Grant and the presiding family judges through throughout the state.

Davis say he thought Albin would be the most receptive member of the court, noting he was the sole dissenter to a Jan. 14 opinion that refused to grant certification from an appeals court ruling that an indigent defendant is not entitled to appointed counsel when prosecuted for violating the Prevention of Domestic Violence Act.

Indigent child-support debtors in New Jersey have a constitutional right to court-appointed counsel before they can be jailed to coerce payment, but not to an expert witness, a state appeals court held Wednesday.

The precedential ruling in Schochet v. Schochet means that a former hedge fund manager who owes more than $250,000 in combined arrears on child support and alimony won't have an employability expert or a C.P.A. provided at public expense for his hearing set for April 30.

Ariel Schochet "has failed to show that the expert evidence he seeks is necessary to avert an enhanced risk of an erroneous determination and wrongful incarceration, or even that such expert evidence would assist the trier of fact to evaluate evidence of a kind routinely reviewed by Family Part judges," the panel said.

The court noted that Schochet, who claims he now makes $600 a week per week as a consultant, has not been found indigent yet is being provided with legal representation at public expense.

Schochet, of Teaneck, was divorced from Sharona Grossberg in 2012, ending a 17-year marriage. Alimony was set at $1,500 per week and child support at $390, for a combined obligation of almost $100,000 per year.

Prior to the 2007 stock market collapse, Schochet earned as much as $1 million per year as a portfolio manager at several hedge funds, including Fortress Investment Group and Citadel Investment Group.

He claims, however, that it was not until 2011, that his income really took a downturn. According to his LinkedIn page, that is when he went from Height Analytics, an investment research firm, to Adam Leffel Productions, which provides services for weddings, bar mitzvahs and other occasions.

As of February, he was behind by about $250,000 in child and spousal support, a sum that continues to climb each week.

He was first ordered incarcerated for not paying support last August but the state Supreme Court stayed his incarceration in October.

The matter went back to Bergen County Family Part, where a judge refused to let him proceed as an indigent but appointed a lawyer to represent him for an ability-to-pay hearing and "for future filings and hearings on that issue that may result in incarceration."

Under a 2008 court directive, No. 15-08, a judge can send someone to jail to coerce payment of a release amount set at such a hearing based on a finding of current ability to pay it, but only upon a finding of a willful refusal to pay that sum.

Bergen County appointed Mark Musella, of Mason & Musella in Hasbrouck Heights, as Schochet's lawyer for his ability-to-pay hearing, which was adjourned until Feb. 4.

A few days before the hearing, Musella asked the county counsel's office to retain two experts to testify regarding Schochet's employability and his past, present and future earnings, income, job placement and current ability to pay support, calling them "necessary and essential to our case."

Musella wanted David B. Stein, Ph.D., to show that Schochet could not find employment paying enough to cover his obligation. Schochet had hundreds of pages of job search documents evidencing his search for an appropriate job commensurate with his history and experience, and the issue was complex enough to require expert analysis, Musella said.

The other expert requested was an unnamed C.P.A.

The county counsel refused, as did Superior Court Judge Ronny Jo Siegal, who adjourned the hearing until April 30 to await the results of a job review from Schochet's current employer, Worldwide Stock Transfer.

On an emergent appeal, Schochet argued that appointment of experts, like lawyers, was constitutionally required under Pasqua v. Council, 186 N.J. 127 (2006), which holds that indigent child support obligors cannot be locked up to coerce payment without counsel.

But Appellate Division Judge Marianne Espinosa noted that although Pasqua requires appointing counsel, it is "silent as to other services."

She also said Schochet blurred the distinction between the issue decided at an ability-to-pay hearing versus a plenary hearing-the kind held when a court decides the amount of the support obligation.

In deciding willfulness at an ability-to-pay hearing, a judge "will generally not need to delve beyond determining whether the obligor has made a good faith effort to secure a reasonable level of employment," she wrote.

Espinosa, who has served as a Family Part judge in Morris County, questioned whether expert testimony would even be admissible. It is allowed in to assist the trier of fact when the subject matter is beyond common knowledge but family judges routinely evaluate financial information without expert help, and are "well versed in reviewing the good faith of litigants who fail to meet their obligations in the full spectrum of post-judgment litigation," said Espinosa, who was joined by Judges Clarkson Fisher Jr. and Ellen Koblitz.

Her opinion mentioned court directive No. 02-14, issued on April 14 in response to an increase in emergent appeals to the Supreme Court by people put in jail for not paying support, contrary to Pasqua and the 2008 directive.

With that directive was a new, more detailed form for what judges must find at what it referred to as "ability to comply" hearings and more training for judges on how to handle them.

Pennington solo David Perry Davis, who represented the Pasqua plaintiffs, says the Schochet decision is correct but the contents of the opinion indicate that judges still do not understand their role.

He says the question is not, per Schochet, the "ability to comply with the current child support obligation" but whether the obligor has enough money right now-in their pocket, wallet, a bank account, a shoebox under the bed or elsewhere-to pay the release amount, the sum set by the judge at the hearing as a condition for release.

Davis calls the term "ability to comply hearing" a "horrendously bad" one that "invites error."

He had written to the judiciary a few days before the release of Directive No. 02-14 to complain of repeated incorrect rulings by trial and appeal courts, resulting in half a dozen instances in the last five months where the Supreme Court had to step in and summarily reverse an order for incarceration.

On Monday, he wrote to Administrative Director of the Courts Glenn Grant that he did not think the new directive and form would fix the problem.

Grossberg's lawyer, William Schiffman of Kantrowitz, Goldhamer & Graifman in Montvale, was out of the country and could not be reached for comment on the ruling.

Musella did not return a call.

Contact the reporter at [email protected].