Andreana Kavadas, et al v. Raymond Martinez, et al MER-L-1004-15 Kavadas v. Martinez challenges the automatic suspension of driver’s licenses for nonpayment of child support without a reasonably recent hearing to determine if a default was willful. It does not challenge the ability of a court to suspend a license where there has been a recent showing that it would serve a legitimate, coercive effect. The suit also seeks to have counsel appointed as the New Jersey Supreme Court has determined a license suspension to be a “consequence of magnitude” mandating this protection. Finally, plaintiffs seek to end the practice whereby the MVC suspends an obligor’s license but does not inform them of the suspension until afterwards (in violation of a specific statute mandating that suspensions are to be effective 20 days after imposed).
A more complete write-up is here. Ongoing case: All pleadings, documents, and information Anne Pasqua, et al v. Hon. Gerald J. Council, et al <br186 N.J. 127 (2006)</br (March 2006) A-6875-02T3 (Superior Court, Appellate Division) (September 2005) MER-L-406-03 (Superior Court, Law Division, 2003) (April 2003) 316 f.3d 412 (3d Cir. 2003) (United States Court of Appeals for the Third Circuit, 2003) (January 2003) Case No. 00CV-2418 (District Court, 2000) (October 2000) Pasqua v. Council successfully challenged New Jersey’s failure to appoint attorneys for indigent child support obligors at enforcement hearings where they face incarceration. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that “an indigent litigant has a right to appointed counsel … when, if he loses, he may be deprived of his physical liberty.” The right to appointed counsel when a (civil or criminal) litigant’s liberty is at stake was also established by the Supreme Court of New Jersey in Perlmutter v. DeRowe, 58 N.J. 5 (1971), by the New Jersey Appellate Division in In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div. 2002), and via New Jersey Court Rule 5:3-4 .
Until April 24, 2003, New Jersey was one of approximately a half dozen states that incarcerated unrepresented, indigent litigants at enforcement hearings without providing counsel.The AOC issued Directive #15-08 (along with follow-up Directive #02-14) discussing when warrants should (and should not) be issued and the correct way to conduct an ability to pay hearing so as to do all that’s possible to ensure that only those who are willfully refusing to pay are “coercively incarcerated.” As a result of this suit, trial courts are to diligently inquire into the indigence of anyone facing incarceration applying the same standard used when a defendant requests a public defender in a criminal matter. As no pool of attorneys exists to represent indigent Family Court litigants (pending further legislative action), incarceration is not available as an option at ability to pay hearings. In 2011,
The United State Supreme Court decided the case of Turner v. Rogers, which held that the Federal Constitution does not always mandate the appointment of counsel under these circumstances. This ruling does not negatively impact the Pasqua decision. Initially, Pasqua was decided under the State Constitution. States are free to grant more rights than the Federal Constitution. Second, the United States Supreme Court distinguished cases where both parties are proceeding without counsel from those where the full weight of the State is brought against a pro se litigant facing jail. Under New Jersey’s process, essentially all proceedings seeking to incarcerate a child support debtor are brought by the Probation Department. Finally, the Supreme Court specifically “did not address civil contempt proceedings where the underlying child support payment is owed to the State, for example, for reimbursement of welfare funds paid to the parent with custody.” These cases constitute roughly 58% of all enforcement proceedings.
Defendants’ opposition to Plaintiff’s petition for certification NJ Supreme Court (Apr 2005) Appellate Division Decision (reversal: avoids the merits) (Sep 2004)
MCBSS o/b/o Ricks v. Revel Fowler FD-11-1012-07 Revel Fowler v. Cassandra Ricks FD-11-1106-07 When a mother receiving TANF (welfare) gives birth to another child, the welfare benefits received do not increase. This is referred to as the “welfare cap.” However, she is required to assign her right to receive child support for the after-born child to the State. This means, in effect, that the father would pay child support, but the funds paid would not go to help his child, they would be used to repay a welfare grant for the child(ren) the mother had before his child was born.
This is, obviously, unfair. Revel Fowler, father of Crystal Fowler, objected to paying child support through probation as the Mercer County Board of Social Services would seize all but $50 of what was paid because his daughter was born after Crystal’s mother began receiving public assistance. He would have to pay child support, but Crystal would receive no benefit from it as it would be used to pay for benefits Crystal’s mother received for her other child. In an exhaustively researched 64 page decision, Hon. Mitchell E. Ostrer, JSC (now an Appellate Division judge) held that the Assignment of Child Support under these circumstances violates the “taking clause” of the Fifth Amendment to the United States Constitution and Article 1, paragraph 20 of the New Jersey Constitution.
Brief in opposition (MCBSS) (Thomas W. Sumners, Esq) (6/07) Letter Brief on behalf of Revel Fowler (David Perry Davis, Esq.) (7/07) Leonard, et al v. Blackburn, et al, MER-L-3761-01 This civil rights suit addressed the arrest and jailing of defaulted child support obligors for weeks – sometimes even months – at a time without review of their incarcerations, and the ongoing inadequacy of the evidence adduced at such hearings that the jailed obligor has the current ability to pay any release amount set.
In the worst case, a completely indigent obligor spent 93 days in jail before receiving any type of hearing at all, and the majority of plaintiffs had release amounts set without any evidence whatsoever that they had the ability to pay the thousands of dollars required for their release. On January 22, 2002, Hon. Linda Feinberg, A.J.S.C. (Mercer) issued a ruling denying plaintiffs’ application for class certification and declined to address the issue of the adequacy of findings made at so-called “Ability to Pay” hearings.
However, the court did address the issue of obligors being held for inordinate amounts of time without being reviewed (at least as to the named defendants). From now on, anyone arrested for defaulting on a child support obligation (or failing to appear for an enforcement hearing) must have a hearing within 72 hours and must thereafter be reviewed every two weeks.
W.M., K.N., et al v. Hon. Philip Carchman, et al (Law Div. 7/05) Separation of Church and State / First Amendment: Threatened suit over the violation First Amendment by Family Court orders compelling attendance Alcoholic Anonymous / Narcotics Anonymous meetings. The State conceded the point and changed the system prior to suit being filed.
New Jersey Law Journal Story – tif file (July 2005)
Superior Court of New Jersey : Appellate Division
This page is being updated to include more recent Appellate Division decisions. A listing of them since those listed below can be found here Kummarapurugu v. Thota (App.Div. 2015) Sat Below: Hon. Catherine Fitzpatrick P.J.F.P. (Mercer County) In this wrongly decided appeal, the Appellate Division declined to intervene when the trial court inadvertently copied the wrong information from the record into the software used to calculate Mr. Kummarapurugu’s child support obligation after Mr. Kummarapurugu sought review of the amount as the result of the birth of a subsequent child. The Appellate Division held that Mr. Kummarapurugu was complaining as to the modification of his support (which was inaccurate as he was the one who filed for review) and was dissatisfied as to how “factors” were applied (which was inaccurate as there were no “factors” involved, it was a straight guidelines application). The Appellate Division denied without comment a motion for reconsideration. A petition for certification to the Supreme Court was filed, asking for the limited relief of remanding the case for the correciton of these errors. Update: On November 6, 2015, the Supreme Court of New Jersey entered an order remanding the case to the Family Part for further action.
Order from the Supreme Court of New Jersey Appellate Brief and Appendix Respondent’s Brief
Miller v. Miller, (App. Div. 2007) Sat Below: Hon. Roger Daley, J.S.C. (Middlesex County) The appellate court notes that, while the parties’ Property Settlement Agreement is not clear and unambiguous on its face with respect to the defendant-father’s obligation to pay his son’s college costs, it nevertheless disagrees with the trial judge’s conclusion that, because the PSA explicitly spells out, in one paragraph dealing with summer camp, that “tuition” includes room and board, the unmodified word “tuition” in another paragraph must be read to have the same meaning for purposes of defendant’s college cost obligation. The order requiring defendant to pay tuition, room and board is reversed and the matter remanded for further proceedings.
Order following remand (Prevailed) Appellate Decision (PDF)
Khatkhat v. Hussein, (App.Div. August 18, 2006) Sat Below: Hon. Salvatore Bovino, J.S.C. (Hudson County) In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. “A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Order on Emergent Application (PDF) Application for emergent relief (PDF)
Tomlin v. Tomlin (App Div 2005) Sat Below: Hon. Allison Accurso, J.S.C. ( Mercer County ) As has happened occasionally in the past, the trial Court, due to calendar congestion or some other reason, was delaying issuing an order. In this case, it was on an unopposed motion to freeze proceeds from an inheritance and sale of real estate. The matter became emergent as moving vans were outside the house. The appellate division was asked to view the lack of an order as a de facto denial. Within 24 hours of receipt of the application, there was apparently communication between the appellate division and the trial court as an order was finally issued. This is a very simple, one page denial of an emergent application but could be very useful to anyone in the same circumstances in the future.
Harris v. Harris (App Div 2005) Sat Below: Hon. Audrey Payton Blackburn, J.S.C. (Mercer County) The trial Court erred by dismissing plaintiff’s domestic violence complaint and Temporary Restraining Order as a result of an error committed by the Municipal Court in the filing of the complaint. On an emergent application, the Appellate Division reversed and reinstated the complaint and TRO.
Bayes v. Wallace A-5176-03T5 (App Div 2005) Sat Below: Hon. Thomas P. Kelly, J.S.C. (Mercer County) The trial Court erred by entering a restraining order after (1) denying defendant’s request for an adjournment to retain counsel when plaintiff raised allegations at trial that went beyond those contained in her complaint (2) by relying on allegations that were previously adjudicated in defendant’s favor (3) by failing to permit defendant to cross examine plaintiff or her witness and (4) by failing to inform defendant of the serious nature and repercussions of a Domestic Violence restraining order..
State v. Harris, A-6485-01T3 (App.Div. 2004) Sat Below: Hon. Laura M. LeWinn, J.S.C. ( Mercer County ) The trial Court erred in convicting defendant of violating the parties’ mutual Domestic Violence restraining orders where there was no evidence that defendant’s outburst at his former wife rose to the level of quasi-criminal harassment.
Owens v. Owens, A-6005-00T2 (App.Div. 2003) Sat Below: Hon. Roger W. Daley, J.S.C. (Middlesex County) (Appearing for respondent) The trial court did not abuse its discretion in awarding $425.00 per week in permanent alimony and $127.00 per week in child support in light of the long-term (17 year) marriage, plaintiff’s serious disabilities, and defendant’s earnings history in excess of $70,000 per year. Appellant’s claim that the judgment impoverishes defendant is frivolous as it does not take into account the tax effects of an alimony award.
Goldberg v. Goldberg, A-003205-00T3 (App.Div. 2002) Sat Below: Hon. Audrey P. Blackburn, J.S.C. ( Mercer County ) The trial court erred in failing to compel custodial parent to repay child support received after the emancipation of the “child.” This is a two page reversal; I have found it helpful to include a copy of this decision with all applications filed to have post-emancipation child support returned to the payor. Without supplying this law, many judges will erroneously terminate child support only to the filing date of the motion – this is within the Court’s discretion if support is reduced or terminated based on a change in circumstances. As this decision affirms, it is never permissible when support is terminated as a result of emancipation – all support paid since emancipation must be refunded.
Appellate Decision Appellate brief
Sharp v. Sharp, 336 N.J.Super. 492 (App. Div. 2001) Sat below: Hon. Gerald Council, J.S.C. (Mercer County) In the first published appellate decision in New Jersey to address the intricacies of interstate child support jurisdiction under the Uniform Interstate Family Support Act (UIFSA), the appellate division reversed a trial court finding of in personam jurisdiction over a California resident and clarified procedural aspects of motions for reconsideration.
Cruz v. Cruz, (App.Div. March 19, 2001) Sat Below: Hon. Rosalie B. Cooper, J.S.C. (Ocean County) In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. “A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Required documentation for emergent appeal (download, WordPerfect format)
W.M. v. T.M., A-4789-99T1 (App.Div. 2000) Sat below: Hon. Alan J. Pogarsky, J.S.C. ( Mercer County ) The trial court erred by resolving the material fact question of whether appellant had abused his daughter without conducting a plenary hearing. In light of the allegations made and the inherent difficulty of disproving same, appellant should have been granted access to the files of the Division of Youth and Family Services and the Mercer County Prosecutor’s Office.
Appellate brief – WordPerfect format
Weinstein v. Weinstein (App.Div. March 27, 2000) Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County) In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. The appellant was to be released immediately and the matter was remanded for the trial court to conduct an ability to pay hearing.
Appellate Decision Emergent appellate brief
Weinstein v. Weinstein (App.Div. April 7, 2000) Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County) After the initial remand, a second trial court order incarcerating defendant was reversed and appellant ordered released immediately. Although the findings of the trial court as to appellant’s ability to earn were affirmed, the remedy chosen (incarceration until payment of $28,163.10 towards arrears) was erroneous as the record was devoid of evidence that defendant had the ability to pay the release amount ordered by the Court. “We disagree only with the remedy chosen by the judge. An order incarcerating a debtor-spouse … presupposes that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. R. 1:10-3.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Appellate Decision Emergent appellate brief
Bachman v. Cohen (App.Div. April 12, 2000) Sat Below: Hon. Thomas W. Cavanaugh, Jr., J.S.C. (Monmouth County) In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. A finding that an obligor has not established changed circumstances warranting modification of a support order is not synonymous with, and cannot substitute for, a finding based on substantial, credible evidence that the obligor has the ability to comply with the order.”The purpose of an order incarcerating a judgment debtor is to induce compliance with the order. In such cases, the incarcerated party has the key to freedom in his/her hands because the debtor-spouse has the ability to comply with the order as a condition for release.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
MCBSS o/b/o Brookins & Williams v. Tolbert, (App.Div. June 7, 2000) Sat below: Hon. Gerald Council, J.S.C. (Mercer County) In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. The incarceration of defendant in the absence of any showing that he could pay the $10,000 purge figure set by the Court was “manifest error. A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Margrabia v. Margrabia, A-1179-97T1 (App.Div.), Cert denied 161 N.J. 250(1999) Sat Below: Hon. John Tomasello, J.S.C. ( Gloucester County ) The trial court erred in its determination that it could award “equitable credits” after finding that the parties’ prenuptial agreement was valid and enforceable and by increasing a compensatory damages award based on considerations of the defendant’s assets. Successfully opposed adversary’s petition for certification to the Supreme Court of New Jersey.
Gretel v. Essex, A-007-97T1 (App.Div. 1998) Sat below: Hon. Charles Delehey, J.S.C. (Mercer County) In this wrongly decided unsuccessful appeal, the appellate division extended the parameters of the Prevention of Domestic Violence Act’s “former household member” jurisdictional prerequisite to include a brief co-tenancy with no romantic nor familial relationship between the litigants and affirmed the issuance of a restraining Order based on defendant’s “harassment” of plaintiff by leaving six voice mail messages at her place of employment. (Only the reply brief is available, I was not original counsel on the appeal) Please note that, at the request of one of the litigants, I have changed the names and docket number on this case.
JAH v. JM A-3676-93T2 (App.Div. 1996) Sat Below: Hon. Roger Mahon, J.S.C. ( Hunterdon County ) David Perry Davis, while in final year of law school, working with several attorneys and the litigant pro se. The trial court abused its discretion in denying defendant-appellant’s motion to vacate a default judgment, entered while she was suffering from severe alcoholism, that (1) deprived appellant of a palimony claim after a 17 year live-in relationship with respondent, (2) deprived her of the ability to litigate her assault counts, and (3) deprived her of custody of her son. On remand, this case made legal history as the first case ever in the state of New Jersey where a jury was empanelled in the Family Part to hear a domestic tort claim. The case was settled prior to the commencement of the jury trial.