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SUPERIOR COURT
OF NEW JERSEY
APPELLATE
DIVISION
APPLICATION TO
FILE APPEAL OR MOTION ON AN EMERGENT BASIS
TO: Hon.
James M. Havey, JAD DATE: March 4, 2001
FROM: David
Perry Davis, Esq. TELEPHONE: 732-274-9444
The
following questions are to be answered by the attorney or pro se
litigant requesting emergent relief.
This questionnaire is simply designed to determine if the application be
handled in the ordinary course or on an emergency basis. COMPLETION OF THIS APPLICATION DOES NOT IN
ANY SENSE CONSTITUTE THE FILING OF AN APPEAL OR MOTION. There is no right to be heard orally on an
emergency application.
CASE NAME: Cruz v Cruz
1. What is the vicinage of the matter? (i.e.
what judge, in what county or what agency entered the decision?)
Hon. Rosalie B. Cooper, JSC, Ocean County
2. a)
What is your name, address, phone number and fax number?
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
b)
Whom do you represent?
Juan Cruz (For appellate purposes only)
3. What is your adversary's name, address, phone
number and fax number?
Ocean County Probation Dept
PO Nancy Cain
Ocean County Justice Complex
PO Box 2191
Toms River, NJ 08754
4. Do you have a written order or judgement
entered by the judge or a written agency determination? YOU MUST ATTACH A COPY OF THE ORDER,
JUDGEMENT OR DECISION.
No order has yet been received by any
party. Please note that in a prior
application (Tolbert) that mirrors the present one, no written order was
ever entered. A copy of the (2 page)
Order on Emergent Application is enclosed; the Appellate Division acted without
a written order in that matter after both Judge Skillman's law clerk and I
attempted unsuccessfully to obtain a written order from the trial court. I have written the Probation Department and the
Judge and requested that an Order be issued and faxed to me.
5. Are there any claims against any party below, either in this or a
consolidated action, which have not been disposed of, including counterclaims,
cross-claims, third-party claims and applications for counsel fees? IF SO, THE DECISION IS NOR FINAL, BUT RATHER
INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.
No; this is a post-judgement matrimonial matter brought pursuant
to R. 5:7-5 and R. 1:10-3.
6. Have you filed for a stay before the trial
court or agency? If so, do you have a
court order or agency decision denying or granting same?
No; client was pro-se at the support
enforcement hearing. Also, technically
no stay is being sought, summary reversal is being sought.
7. If the order or agency decision is
interlocutory, are you filing a motion for leave to appeal?
Not applicable
8. If interlocutory, are you filing a motion to
stay the trial court or agency proceeding?
Not applicable
9. If the order, judgement or agency decision is
final, have you filed a notice of appeal?
Not yet; will do so immediately upon
decision on this application.
10. What is the essence of the order, judge or
agency decision?
Defendant was incarcerated for child
support arrears without a proper ability to pay hearing and without any
allegation that he has the ability to pay.
11. Has any aspect of this matter been presented
to or considered by another judge or part of the Appellate Division by emergent
application or prior appeals proceedings?
If so, which judge or part?
Not as to this party. Four prior emergent applications of a
similar nature have been filed and all were granted.
12. What is the nature of the emergency?
Defendant is being deprived of his liberty.
13. What is the irreparable harm?
Unconstitutional or improper deprivation of
liberty / incarceration constitutes irreparable harm.
14. What relief do you seek?
Release pending an ability to pay hearing.
Minor supplementation of the record on
appeal.
15. What citation is most important for the
proposition that you are likely to prevail on appeal?
Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996),
Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v.
Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150
N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34 N.J.
331 (1961), Lake v. Speziale, 580 F Supp 1318 (D.Conn. 1984). See also unpublished decisions on emergent
applications in Weinstein v. Weinstein, (App. Div., 3/27/00), Weinstein
v. Weinstein, (App. Div., 4/7/00), Bachman v. Cohen, (App.Div.
4/12/00), Williams & Brookins v. Tolbert, (App.Div. 6/7/00) (copy
enclosed).
16. Have you notified your adversary that you will
be appealing?
Yes, by copy of this application
17. If this application is being made during trial, does the judge know
of it?
Not
applicable
18. Have you served your adversary with all
papers?
Yes
19. Have any transcripts been ordered
(particularly of the trial judge's challenged ruling)?
Yes - in possession of appellant (copy
enclosed, 4 pages).
If so, when will the transcripts be
available?
See above
20. Please give me a brief summary of the facts
of your case:
Defendant-appellant is in arrears on a child support
obligation. He has arrears of
$57,748.74 and an ongoing obligation of $90.00 for current support, $10.00
toward arrears. The last payment made
was in November of 2000 when defendant borrowed $2,000 following his
arrest. Defendant is incarcerated in
the Ocean County Jail. A brief hearing
as to his continued incarceration was conducted on February 27, 2001. At that hearing, it was uncontradicted that
defendant is indigent and unemployed.
No inquiry was made into defendant's assets. A letter submitted by defendant's sister and considered by the
Court on the record during the hearing indicated that defendant has psychiatric
difficulties and is unable to work. The
trial court (correctly) ordered that defendant be evaluated and pursue SSI if
he is disabled. The trial court
(incorrectly) ordered defendant to remain incarcerated in the interim. Defendant seeks summary reversal of the Order
incarcerating him pending a proper ability to pay hearing.
The "children" involved are both over 18 and
neither is a full-time college student.
Defendant seeks to supplement the record to establish this undisputed
fact. Defendant was pro se until
his family hired counsel for this appeal; he has never applied to have the
children declared emancipated. This is
a "pure debt" incarceration.
6/99
NOTICE OF APPEAL
superior court of New Jersey - appellate
division
title
of action as captioned below attorney of record
name David
Perry Davis, Esq.
Brenda Cruz
address
31
Jefferson Plaza
Plaintiff Princeton,
NJ 08540
phone
no. (732)
274‑9444
vs.
attorney
for Defendant
Juan Cruz
on appeal from
Defendant Superior Court of New Jersey
Chancery
Division, Family Part
Ocean
County
trial
court or state agency
FM-15-354-85___________________
trial
docket or indictment number
notice
is hereby given that Defendant appeals to the superior court of n.j.
appellate division from the judgement (X ) order (
) other (specify)
entered
in this action on February 27, , 20 01 in favor of Plaintiff
if
appeal is from less than the whole specify what parts or paragraphs are being
appealed.
are
all issues as to all parties disposed of in the action being appealed? yes (X ) no ( )
if
not is there a certification of final judgment entered pursuant to r. 4:42-2? n/a
priority
under r. 1:2-5 yes ( ) no (X ) applicable section under
the rule
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in criminal quasi-criminal and juvenile
cases not incarcerated ( ) incarcerated ( )
confined at
give a concise
statement of the offense and of the judgement date entered and any sentence
or disposition imposed
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1/ notice of appeal has been served on: date
of type of
name service service
trial court
judge Hon. Rosalie B. Cooper, JSC
trial court
clerk state agency
attorney general or
governmental
office under
r. 2:5-1 (h)
other
parties
name and designation date of type of
name service service
Ocean County Probation Dept / Child Support Enforcement Division
Brenda Cruz
3/6/01 FedEx
i hereby certify that i have
served a copy of this notice of
appeal on each of the persons
required as indicated above
March 4 2001
signature of attorney of record
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2/ prescribed transcript request form has been
served on:
(also indicate if sound
recorded)
date of
type of
name service service
administrative
office of the courts
chief court
reporting services
court
reporter's supervisor
clerk of county
or agency
court reporter
i
hereby certify that i have served the prescribed court
transcript
request form on each of the
above persons
and
paid the deposit as required by r. 2:5-3(d)
n/a already in possession
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signature of attorney of record
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3/ i hereby certify that:
( ) there
is no verbatim record
(X ) transcript is in the possession of the attorney
of record
( ) a motion for abbreviation
of transcript has been filed with the court or agency below
( ) a
motion for free transcript has been filed with the court below
___________________________ 20____ __________________________________
signature of attorney of record
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superior
court of New Jersey - appellate division
civil case information statement
────────────────────────────────────────
title in full for
official use only
appeal
docket no.
Brenda Cruz
Plaintiff notice
of appeal filed:
vs.
date
sent:
Juan Cruz
Defendant
────────────────────────────────────────
appellant's attorney(s): Plaintiff
Defendant
Other (Specify)
name address telephone client
David Perry Davis, Esq. 31 Jefferson Plaza (732) 274‑9444 Defendant
Princeton,
NJ 08540
respondent's attorney(s)*:
name address telephone client
Ocean County Probation Dept. PO Box 2191
Child Support Enforcement Unit Ocean County Justice Complex
Toms
River, NJ 08754
Brenda Cruz, pro se
[indicate which parties, if
any, did not participate below or who were no longer party to the action at the
time of entry of the order/judgment being appealed.] Brenda Cruz, plaintiff,
did not participate. Application for
enforcement hearing was brought by Ocean County probation, child support
enforcement unit. Arrears are owed to
OCBSS. Plaintiff never consulted as to
enforcement application being made.
────────────────────────────────────────
give date and summary of
terms of judgement entered below:
Are
there any claims against any party below, either in this of in or a
consolidated action,
which
have not been disposed of, including counterclaims, cross-claims, third party
claims
and applications for counsel fees? Yes
No X
If
so, has it been certified as final pursuant to R. 4:42-2? n/a Yes
No
(If not, leave to appeal must be
sought. R. 2:2-4, 2:5-6)
Is
the validity of a statute, executive order, franchise or
constitutional
provision of this State questioned? (R.
2:5-1) Yes No X
────────────────────────────────────────
give a brief statement of the
facts and procedural history:
Defendant was improperly incarcerated
without an ability to pay hearing, and has now been incarcerated for in excess
of 10 days. See attached application
for leave to file an emergent appeal.
────────────────────────────────────────
to the extent possible, list the proposed
issues to be raised on this appeal, as they will be described in appropriate
point headings pursuant to r. 2:6-2(a)(5).
(appellant or cross appellant only.)
I. See
attached application for leave to file an emergent appeal.
II.
Such other points as research and preparation of the appellant's brief
and appendix may reveal.
if you are appealing from a
judgment entered by a trial judge sitting without a jury or from an order of
the trial court, complete the following:
1. Did the trial judge issue oral findings or
opinion?
Yes
X No
If so, on what date? February 27, 2001
2. Did the
trial judge issue written findings or opinion?
Yes No X
If so, on what date? __________________
Caution: Before you indicate that there was neither an
opinion nor findings, you should inquire of the trial judge to determine
whether findings or an opinion was placed on the record out of counsel's
presence or whether the judge will be filing a statement or opinion pursuant to
R. 2:5-1(b).
Date of your inquiry: __________________
Will the trial judge be filing a statement or opinion
pursuant to R. 2:5-1(b)?
Yes No X
────────────────────────────────────────
All civil appeals will be screened under the Civil
Appeals Settlement Program to determine their potential for settlement or, in
the alternative, a simplification of issues, abbreviation of transcript and any
other matters that may aid in the disposition or handling of the appeal. Please consider these when responding to the
following question.
State whether you think this case may benefit from a
conference. Yes No X
Explain your answer.
A negative response will not necessarily rule out the scheduling of a
pre-argument conference.
Defendant should be immediately released
pending a proper ability to pay hearing; at said hearing he should not be
incarcerated absent evidence his non-compliance constitutes a willful disregard
of the child support obligation and/or he has the present ability to comply.
────────────────────────────────────────
1. is
there any case now pending or about to be brought before this court which:
(A) Arises from
substantially the case or controversy as this appeal? Yes No X
(B) Involves
an issue that is substantially the same, similar or related to an issue in this
appeal? Yes No X
2. was
there any prior appeal involving the case or controversy?
Yes No X
if the answer to either 1 or
2 above is yes, state:
Case name: Appellate Division Docket No.:
────────────────────────────────────────
Name of
Appellant or Respondent Name of Counsel of Record
Date Signature of Counsel of
Record
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
Attorney for defendant / appellant
───────────────────────────────────────
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Brenda Cruz,
Plaintiff
/ Respondent
vs.
Juan Cruz,
Defendant
/ Appellant
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
Civil Action
NOTICE OF MOTION FOR
EMERGENT RELIEF
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───────────────────────────────────────
PLEASE TAKE
NOTICE that, at a time and place selected by the appellate division, defendant
shall move for an Order:
1. Waiving the required filing fee in this
matter pursuant to R. 1:13-2(a) and granting leave to appeal out of time
pursuant to R. 2:4-1(a);
2. Summarily reversing the trial court's
February 27, 2001 Order pursuant to R. 2:8-3(b) and compelling the
immediate release of defendant pending a proper ability to pay hearing;
3. Ordering that defendant shall not be
re-incarcerated absent a finding, based on substantial and credible evidence,
that he has the present ability to comply with the court orders subject to
enforcement or that he has wilfully failed to comply with any
employment-related conditions or disability-related conditions set by the
court;
4. Permitting minor supplementing of the record
on appeal;
5. For such further relief as the court may
deem equitable and just.
Defendant
shall rely on the enclosed letter brief, certification and attachments.
___________________________
David Perry Davis, Esq.
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
Attorney for defendant
───────────────────────────────────────
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Brenda Cruz,
Plaintiff
/ Respondent
vs.
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