You see it all of the time.  In defense of an enforcement motion, a litigant says “I didn’t knowingly violate the Order”, “I didn’t willfully violate the Order”, “it wasn’t my fault”, “it was an honest mistake.”  In fact, just last week someone was trying to add the term “willful” to an agreement to essentially make enforcement impossible because he would just blame is non-compliance on oversight or some other excuse.  Worse yet, judges sometimes buy the excuse and fail to find a party in violation of litigants rights even though there is no dispute that an Order or Agreement was breached.


But is “willful violation” actually the standard for enforcement?  Well yesterday, the Supreme Court reminded us that it was not the standard in In re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Housing.   This case is not a family law case, mind you, but rather, another in the long line of affordable housing cases.  That said, the Supreme Court told us once again what the standard is, as follows:

Although Rule 1:10-3 encompasses the notion of civil contempt, we have expressly stated that “we view the process [under Rule 1:10-3] as one of relief to litigants.” In re Daniels, 118 N.J. 51, 60 (per curiam) (emphasis added) (citing R. 1:10-5, now R. 1:10-3), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990). The focus being on the vindication of litigants’ rights, relief sought pursuant to Rule 1:10-3 does not necessarily require establishing that the violator of an order acted with intention to disobey. Indeed, courts have recognized that “demonstration of a mens rea, wilful disobedience and lack of concern for the order of the court, is necessary for a finding of contempt, but irrelevant in a proceeding designed simply to enforce a judgment on a litigant’s behalf.” Lusardi v. Curtis Point Prop. Owners Ass’n, 138 N.J. Super. 44, 49 (App. Div. 1975) (emphasis added); see also N.J. Dep’t of Health v. Roselle, 34 N.J. 331, 347 (1961) (“The Appellate Division correctly held that upon a litigant’s application for enforcement of an injunctive order, relief should not be refused merely because the violation was not willful.”).

It bears repeating in connection with this present application that our Court Rules generally are to be construed and applied to secure a just determination and to achieve simplicity in procedure. R. 1:1-2. That admonition has particular force when it comes to assisting a litigant in securing vindication of rights.

The Court Rules overall evince an intent toward flexibility when the enforcement of rights is at stake. They provide various means for securing relief and allow for judicial discretion in fashioning relief to litigants when a party does not comply with a judgment or order. In addition to the mechanism of Rule 1:10-3, Rule 4:59-2(a) provides related support for assisting a litigant in securing relief:

 If a judgment or order directs a party to perform a specific act and the party fails to comply within the time specified, the court may direct the act to be done at the cost of such defaulting party by some other person appointed by the court, and the act when so done shall have like effect as if done by the defaulting party.

[See also Roselin v. Roselin, 208 N.J. Super. 612, 618 (App. Div.) (citing R. 4:59-2(a) when noting alternatives available to trial court for enforcing party’s rights), certif. denied, 105 N.J. 550 (1986).]

In Roselin, supra, for example, Judge Pressler invoked Rule 1:10-3’s predecessor rule when assessing the alternatives available to a trial court where a party failed to sign a contract as ordered. 208 N.J. Super. at 618. Highlighting the hardship that the failure was foisting on another of the contract’s parties, the panel observed that “[i]ntervening rights of innocent third persons have arisen,” id. at 617, and declared that the innocent’s “rights must be enforced,” id. at 618 (citing R. 1:10-5). Judge Pressler noted Rule 4:59-2(a)’s ability to secure relief through the directed actions of others, which adds to a court’s flexibility when vindicating the rights of litigants. See ibid.

In sum, then, although punitive or coercive relief under the Rule cannot be used against one who is not a willful violator of a judgment, see, e.g., Schochet v. Schochet, 435 N.J. Super. 542, 548-49 (App. Div. 2014) (citing Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006), for same and noting “objective of [Rule 1:10-3] hearing is simply to determine whether . . . failure [to comply with an order] was excusable or willful”); Milne v. Goldenberg, 428 N.J. Super. 184, 199 (App. Div. 2012) (upholding imposition of community service under Rule 1:10-3 against plaintiff where record established willful noncompliance), that does not foreclose the vindication of litigants’ rights through other forms of non-punitive and non-coercive orders entered pursuant to Rule 1:10-3’s authority enabling the enforcement of rights.

Simply put, while a court may not be able to impose punitive sanctions unless there is a finding that the conduct is willful, it can certainly find the offender in violation of litigant’s rights and order enforcement.  Why is this important?  Because willfulness or not, if someone is entitled to enforcement they are entitled to enforcement.  Moreover, since it is not uncommon to see repeat offenders, the finding that someone previously violated litigant’s right may be useful if there is a subsequent motion (1) as to whether that conduct was “willful” and (2) as to the issue of counsel fees.  Moreover, since Rule 1:10-3 allows for an award of legal fees, if someone is required to come to court to get that which they are already entitled to, should not they be made whole by the other party who violated an Agreement or Order – even if it was not willful?  The policy reasons noted by Judge Pressler in the above quote suggest so.


Eric SolotoffEric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric is resident in Fox Rothschild’s Roseland and Morristown, New Jersey offices though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or

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