“Why won’t they throw him in jail? He is $10,000 in arrears in child support!” This is a sentiment many matrimonial practitioners frequently hear from their clients. Often times clients think that courts automatically throw an obligor spouse in jail for the non-payment of support. While not uncommon in other states, in truth, the use of coercive incarceration as a consequence to the non-payment of support in New Jersey is rarely utilized because often it is found that the obligor does not have an ability to pay.
In the case of Pasqua v. Council, the Supreme Court of New Jersey held that the “appointment of counsel to assist parents found to be indigent and facing incarceration at child enforcement hearings” was mandated by both the United States and New Jersey constitutions. 186 N.J. 127 (2006). Pasqua however, is silent as to other services that must be provided to an indigent obligor. In the recent published case (precedential) Schochet v. Schochet, plaintiff/obligor argued that Pasqua also requires the appointment of experts to testify at his ability to pay hearing.
The basic facts of Schochet are similar to many cases that have come before. Plaintiff/obligor was a portfolio manager at several hedge funds before the downturn in the economy. The year before the parties got divorced in 2012, plaintiff lost is high-paying job and asserted that since then, he has been unable to duplicate that level of income. The Judgment of Divorce entered in this matter required plaintiff to pay alimony at a rate of $1,500.00 per week and child support at a rate of $390.00 per week (later orders also required a payment of $50.00 per week towards arrears and increased child support based upon a cost of living adjustment).
Plaintiff was first incarcerated for non-payment of support in August 2013, however his incarceration was stayed by the Supreme Court in October 2013. Although the trial court denied him the right to proceed as indigent, counsel was appointed to represent him for the purpose of an ability to pay hearing and for future filings and hearings on any issues which may result in incarceration.
Prior to his ability to pay hearing, counsel for plaintiff requested that the County retain both an employability expert and accountant for the purposes of testifying as to plaintiff’s employability and his current ability to pay child support. This request was denied by the County and the trial court. The trial court provides obligors with a specific questionnaire prior to the ability to pay hearing seeking to obtain information regarding the obligor’s income and expenses. The court also directly addresses the obligor directly to ensure all the relevant information is before the Court.
As a result of the denial of an expert, plaintiff filed an emergent application with the Appellate Division challenging the trial court’s order denying his request for the appointment of an expert on his behalf. The Appellate Division ultimately affirmed the trial court’s order denying plaintiff’s request providing a clear explanation in doing so.
The Appellate Court found that central to Pasqua’s ruling was its concern when indigent litigants are forced to proceed without counsel, there is a high risk of wrongful incarceration but noted that plaintiff failed to show any “increased risk” by the denial of the appointment of an expert (finding it unlikely that the financial information for an indigent obligor would be so complex as to require expert analysis).
The Appellate Court was also clear in noting the purpose of an ability to pay hearing is not to decide what an obligor should pay but rather to determine whether an obligor’s failure to pay “was excusable or willful, i.e., the obligor was able to pay and did not”. Before a court may order the incarceration for non-payment, it must find that the parent was capable of providing the required support, but willfully refused to do so.
The court provides an illustrative example. Assume an obligor makes $100,000 per year and is ordered to pay weekly child support in the amount of $350.00 for two children. The obligor subsequently loses his or her job and now makes $60,000. As a result of the lower income, he or she has only been making payments of $250.00 instead of $350.00 per week. At an ability to pay hearing, it will not be determined whether $250.00 is the appropriate level of support, but rather what amount of the $350.00 the obligor was able to pay. If it is determined that the obligor paid what he was able to pay, no incarceration would be warranted despite the accrual of arrears and the fact that the amount of support remains unchanged.
In sum, even in the absence of a finding of indigence, in the Schochet case plaintiff was afforded legal counsel for the purposes of representing him at an ability to pay hearing. Plaintiff failed to show that the expert evidence he seeks is either necessary to avert an enhanced risk of improper incarceration or that same would even assist the trier of fact to evaluate same. As such, the court concluded that the appointment of experts was not constitutional required under the facts of this case.
There are two take-aways from his case. First, not every obligor will serve a stint in jail for the non-payment of support. Indeed, it likely very rare that your ex-spouse will do so. Second, the court’s specific choice of words, “the appointment of experts was not constitutionally required under the facts of this case” is very telling. It appears the Court is not closing the door entirely on the possibility of appointing experts in these types of cases, but would only choose to do so in extraordinary circumstances.
Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution. Lauren can be reached at (609) 844-3027 or firstname.lastname@example.org.