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Is an Indigent Spouse Entitled to Expert Witnesses at State Expense?

The trial court denied Schochet’s application for expert witnesses at state expense

Plaintiff was first incarcerated for non-support in August 2013.   His incarceration was stayed by the Supreme Court in October 2013.   By order dated November 7, 2013, the trial court:  denied plaintiff’s request that he be granted leave to proceed as an indigent;  appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”;  granted his motion for the adjournment of his ability to pay hearing;  and scheduled the hearing for November 12, 2013.   The ability to pay hearing was further adjourned and scheduled for February 4, 2014. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf
Plaintiff was first incarcerated for non-support in August 2013.   His incarceration was stayed by the Supreme Court in October 2013.   By order dated November 7, 2013, the trial court:  denied plaintiff’s request that he be granted leave to proceed as an indigent;  appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”;  granted his motion for the adjournment of his ability to pay hearing;  and scheduled the hearing for November 12, 2013.   The ability to pay hearing was further adjourned and scheduled for February 4, 2014. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf
Plaintiff was first incarcerated for non-support in August 2013.   His incarceration was stayed by the Supreme Court in October 2013.   By order dated November 7, 2013, the trial court:  denied plaintiff’s request that he be granted leave to proceed as an indigent;  appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”;  granted his motion for the adjournment of his ability to pay hearing;  and scheduled the hearing for November 12, 2013.   The ability to pay hearing was further adjourned and scheduled for February 4, 2014. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

Relying upon Pasqua v. Council, 186 N.J. 127 (2006), Schochet  argued that the appointment of economic and employability experts is constitutionally required because he faces possible incarceration if the trial court finds he willfully failed to pay his support obligations.

The appellate division disagreed and affirmed the trial court’s ruling.

Ariel Schochet was incarcerated for non-support in August 2013. His incarceration was stayed by the Supreme Court in October 2013. By order dated November 7, 2013, the trial court:

  • Denied plaintiff’s request that he be granted leave to proceed as an indigent
  • Appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”
  • Granted his motion for the adjournment of his ability to pay hearing

Schochet’s economic case history

Plaintiff Ariel Schochet was a portfolio manager at several hedge funds before “the market collapse in 2007.”   However, he dates the downturn in his income to several years later, the year before the parties’ 2012 divorce, when he lost a high-paying job.   He states that, since then, he has been unable to duplicate that level of income. The Amended Judgment of Divorce required plaintiff to pay weekly amounts of $1500 for alimony and $390 for child support.   Later orders required the payment of $50 per week toward arrears and increased the child support based upon a cost of living adjustment.

Plaintiff represents that he now earns $600 per week.   He states that, as of February 2014, his arrears were approximately $250,000 and continue to increase by almost $1500 per week.”

Plaintiff Ariel Schochet was a portfolio manager at several hedge funds before “the market collapse in 2007.”   However, he dates the downturn in his income to several years later, the year before the parties’ 2012 divorce, when he lost a high-paying job.   He states that, since then, he has been unable to duplicate that level of income.

The Amended Judgment of Divorce required plaintiff to pay weekly amounts of $1500 for alimony and $390 for child support.   Later orders required the payment of $50 per week toward arrears and increased the child support based upon a cost of living adjustment.

Plaintiff represents that he now earns $600 per week.   He states that, as of February 2014, his arrears were approximately $250,000 and continue to increase by almost $1500 per week.

– See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

Plaintiff Ariel Schochet was a portfolio manager at several hedge funds before “the market collapse in 2007.”   However, he dates the downturn in his income to several years later, the year before the parties’ 2012 divorce, when he lost a high-paying job.   He states that, since then, he has been unable to duplicate that level of income.

The Amended Judgment of Divorce required plaintiff to pay weekly amounts of $1500 for alimony and $390 for child support.   Later orders required the payment of $50 per week toward arrears and increased the child support based upon a cost of living adjustment.

Plaintiff represents that he now earns $600 per week.   He states that, as of February 2014, his arrears were approximately $250,000 and continue to increase by almost $1500 per week.

– See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

[Larry's note: A court must find that a former spouse was capable of providing the required support, but willfully refused to do so, in order to enter an order of incarceration].

The Rule 1:10–3 hearing is not a plenary hearing to decide the appropriate amount of support an obligor should pay. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

What is a Rule 1:10-3 Hearing?

The Rule 1:10–3 hearing is not a plenary hearing to decide the appropriate amount of support a former spouse should pay. That amount has been determined, either by the court following a trial or post-judgment motion, or by the parties themselves.   The hearing is also not a substitute for an appeal or a motion to modify the obligation based on changed circumstances. The hearing comes about because a former spouse has failed to comply with an order.   The objective of the hearing is simply to determine whether that failure was excusable or willful, i.e., the obligor was able to pay and did not.  See Pasqua, supra, 186 N.J. at 145.   It does not establish the future obligation of the party paying support.

The Supreme Court has observed that the purpose of the Rule 1:10–3 proceeding is “to coerce the defendant into compliance with the court’s order for the benefit of the private litigant.”  Id. at 140 (quoting Essex Cnty. Welfare Bd. v. Perkins, 133 N.J.Super. 189, 195 (App.Div.), certif. denied, 68 N.J. 161 (1975)).   Before a court may order the ultimate coercive means, incarceration, “the court must find that the parent was capable of providing the required support, but willfully refused to do so.”  Id. at 141 n.2;  see also Milne v. Goldenberg, 428 N.J.Super. 184, 198 (App.Div.2012).   Because incarceration “may be ordered only if made contingent upon defendant’s continuing failure to comply with the order,” Pasqua, supra, 186 N.J. at 140, the obligor is said to “possess[ ] the keys to the jailhouse door.” See id. at 145.

An example helps to illustrate the difference between the two hearings.   Let us assume a obligor with an annual income of $100,000 is ordered to pay weekly child support of $350 for two children.   The obligor subsequently loses that employment and finds a job that pays $60,000 per year.   If the trial court finds he or she has made a prima facie case of changed circumstances and holds a plenary hearing, the court will evaluate the “potential earning capacity of an individual” to determine an appropriate support obligation.   See Caplan v. Caplan, 364 N.J.Super. 68, 88–89 (App.Div.2003) (quoting Halliwell v. Halliwell, 326 N.J.Super. 442, 448 (App.Div.1999)), aff’d, 182 N.J. 250 (2005).   That evaluation may result in the imputation of income to the obligor if the judge concludes that he or she “is, without just cause, voluntarily underemployed or unemployed.”

The Appellate Division’s rationale

The issue to be decided at an ability to comply hearing closely parallels determinations Family Part judges make on a daily basis concerning the evaluation of financial information provided through documents and testimony, generally without any expert testimony.   In attempting to achieve a fair resolution of the economic issues of parties going through the emotionally charged process of divorce, judges review testimony, case information statements and other financial information, and necessarily make assessments of the parties’ needs, wants, and ability to fund costs.   That experience gives rise to the well-established deference paid to factual findings Family Part judges make that are supported by the evidence, Cesare v. Cesare, 154 N.J. 394, 412–13 (1998), deference that “is especially appropriate ‘when the evidence is largely testimonial and involves questions of credibility.’ ” MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, supra, 154 N.J. at 412).

In particular, Family Part judges are well versed in reviewing the good faith of litigants who fail to meet their obligations in the full spectrum of post-judgment litigation.   For example, in Milne, the former wife appealed from an order that imposed community service hours upon her as a means of coercing her to comply with past orders regarding the payment of a joint federal income tax liability.   The trial court observed that the former wife “had ‘a significant amount of money ․ [at] her disposal, while she was not complying with these court orders’ ” and had “intentionally ‘prioritize[d]’ her funds and ignored the obligation.”  Milne, supra, 428 N.J.Super. at 199 (alterations in original).   Accordingly, the trial court found her “non-compliance was deliberately designed to delay satisfaction of the obligation” and concluded “her failure to pay was willful.”  Ibid.

In sum, even in the absence of a finding of indigence, plaintiff has been afforded legal representation at public expense.   He has failed to show that the expert evidence he seeks is necessary to avert an enhanced “risk of an erroneous determination and wrongful incarceration,” Pasqua, supra, 186 N.J. at 145, or even that such expert evidence would assist the trier of fact to evaluate evidence of a kind routinely reviewed by Family Part judges.   We therefore conclude that the appointment of experts was not constitutionally required under the facts of this case.”

Commentary

The value of this case is:

  • It exposes the volumes of information that must be provided by the parties and analyzed by a judge
  • The myriad Supreme Court directives that come into play (Larry’s note: directives have the same effect as law)
  • And the army of people involved in this process for one, single, hearing

All to answer the $1M question, can a former spouse afford to pay the amount of child support and alimony entered in the original order; or is the former spouse trying to game the system?

Reform is necessary to breathe fairness into the system. Instead of much-needed reform, we get all stakeholders gearing up for a long fight.

What a shame.

UPDATE (4-28-14)

Ariel Schochet was granted leave to appeal on an emergent basis

 

 

 

The issue to be decided at an ability to comply hearing closely parallels determinations Family Part judges make on a daily basis concerning the evaluation of financial information provided through documents and testimony, generally without any expert testimony.   In attempting to achieve a fair resolution of the economic issues of parties going through the emotionally charged process of divorce, judges review testimony, case information statements and other financial information, and necessarily make assessments of the parties’ needs, wants, and ability to fund costs.   That experience gives rise to the well-established deference paid to factual findings Family Part judges make that are supported by the evidence, Cesare v. Cesare, 154 N.J. 394, 412–13 (1998), deference that “is especially appropriate ‘when the evidence is largely testimonial and involves questions of credibility.’ ”   MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, supra, 154 N.J. at 412).

In particular, Family Part judges are well versed in reviewing the good faith of litigants who fail to meet their obligations in the full spectrum of post-judgment litigation.   For example, in Milne, the former wife appealed from an order that imposed community service hours upon her as a means of coercing her to comply with past orders regarding the payment of a joint federal income tax liability.   The trial court observed that the former wife “had ‘a significant amount of money ․ [at] her disposal, while she was not complying with these court orders’ ” and had “intentionally ‘prioritize[d]’ her funds and ignored the obligation.”  Milne, supra, 428 N.J.Super. at 199 (alterations in original).   Accordingly, the trial court found her “non-compliance was deliberately designed to delay satisfaction of the obligation” and concluded “her failure to pay was willful.”  Ibid.

In sum, even in the absence of a finding of indigence, plaintiff has been afforded legal representation at public expense.   He has failed to show that the expert evidence he seeks is necessary to avert an enhanced “risk of an erroneous determination and wrongful incarceration,” Pasqua, supra, 186 N.J. at 145, or even that such expert evidence would assist the trier of fact to evaluate evidence of a kind routinely reviewed by Family Part judges.   We therefore conclude that the appointment of experts was not constitutionally required under the facts of this case.

– See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpu

The Rule 1:10–3 hearing is not a plenary hearing to decide the appropriate amount of support an obligor should pay.   That amount has been determined, either by the court following a trial or post-judgment motion, or by the parties themselves.   The hearing is also not a substitute for an appeal or a motion to modify the obligation based on changed circumstances.   The hearing comes about because an obligor has failed to comply with an order.   The objective of the hearing is simply to determine whether that failure was excusable or willful, i.e., the obligor was able to pay and did not.   See Pasqua, supra, 186 N.J. at 145.   It does not establish the future obligation of the party paying support.7

The Supreme Court has observed that the purpose of the Rule 1:10–3 proceeding is “to coerce the defendant into compliance with the court’s order for the benefit of the private litigant.”  Id. at 140 (quoting Essex Cnty. Welfare Bd. v. Perkins, 133 N.J.Super. 189, 195 (App.Div.), certif. denied, 68 N.J. 161 (1975)).   Before a court may order the ultimate coercive means, incarceration, “the court must find that the parent was capable of providing the required support, but willfully refused to do so.”  Id. at 141 n.2;  see also Milne v. Goldenberg, 428 N.J.Super. 184, 198 (App.Div.2012).   Because incarceration “may be ordered only if made contingent upon defendant’s continuing failure to comply with the order,” Pasqua, supra, 186 N.J. at 140, the obligor is said to “possess[ ] the keys to the jailhouse door.”   See id. at 145.

– See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

in August 2013.   His incarceration was stayed by the Supreme Court in October 2013.   By order dated November 7, 2013, the trial court:  denied plaintiff’s request that he be granted leave to proceed as an indigent;  appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”;  granted his motion for the adjournment of his ability to pay hearing;  and scheduled the hearing for November 12, 2013. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf
in August 2013.   His incarceration was stayed by the Supreme Court in October 2013.   By order dated November 7, 2013, the trial court:  denied plaintiff’s request that he be granted leave to proceed as an indigent;  appointed counsel to represent him for an ability to pay hearing and “for future filings and hearings on that issue that may result in incarceration”;  granted his motion for the adjournment of his ability to pay hearing;  and scheduled the hearing for November 12, 2013. – See more at: http://caselaw.findlaw.com/nj-superior-court-appellate-division/1664150.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+FindLawNJSuperApp+(FindLaw+Case+Law+Updates+-+NJ+Superior+Court%2C+Appellate+Division)#sthash.mSejaimg.dpuf

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8 Responses to “Is an Indigent Spouse Entitled to Expert Witnesses at State Expense?”

  1. ArielSchochet April 27, 2014 at 4:31 pm #

    Larry,

    Thank you for highlighting my case (even if you did spell my name wrong ;).

    I am very thankful that the opinion was published and can be used as precedent.

    While, I seemingly ‘lost’ on the question that was asked (cost of am employment expert), I feel that I won on the much bigger issue which caused the case to occur.

    Now there is FINALLY a published opinion which goes through the specific information that must be collected and used at an “Ability-to-Comply” hearing.

    Further, the main reason that they denied my request is that they said it is too much information and not relevant. By saying this, the court helps to reinforce that the question asked at such a hearing is whether a debtor has the ability to comply on that date and NOT has the debtor done every possible thing on the planet to try and resume the highest possible income possible.

    It states in the opinion that a good faith effort is needed and therefore ‘expert’ testimony isn’t necessary.

    Having spent the last two and a half years in and out of the Bergen County Jail for the crime of being un/under-employed (ie: not being able to pay $2,000 a week in alimony and child support), I hope that this ruling will finally ‘free’ me from this cruel unfair system.

    Ariel Schochet

    • lawrence berezin April 27, 2014 at 4:46 pm #

      Ariel,
      Good afternoon.
      Sorry about the gaffe.

      Your case is a horror story on so many different levels. It cries out for the need to reform a system that is broken.
      Your amazing attitude about the process is inspiring.
      Debor’s prison is barbaric.

      Thanks for commenting.
      It means a lot to all of us.
      Best,
      Larry

  2. Lady4Justice April 27, 2014 at 5:12 pm #

    Stories like this break my heart. I came very close to losing a good paying job in 2010 when the company I worked for sold my division (I was one of just a few who were kept on by the new owners). Since I was the primary breadwinner in the family I spent several agonizing weeks worrying about how I would pay our mortgage if I wasn’t offered a position. That event was traumatic enough, so I can only imagine the anxiety felt by these poor souls who also face the possibility of incarceration due to the inability to pay a debt that is, in many cases, without end. Methinks these judges could use a little sensitivity training. Someone needs to point out to them that most members of the working class do not have the luxury of tenure and generous public pensions.

    • lawrence berezin April 27, 2014 at 5:16 pm #

      Dear Lady4Justice,
      Good afternoon.
      Well said.
      I agree 100%.
      Best,
      Larry

  3. njskypilot April 28, 2014 at 4:25 pm #

    As a litigant in a high conflict divorce, Ariel is a true inspiration to all of us who are in this struggle for fairness in our family courts. My situation is similar to ari’s in that I work on wall street, I was divorced in 2007(my peak earning year), 2008-2009 economy collapsed and my income was down by 80% at its worst point. Quickly I went into arrears and all that comes with it, DL suspensions, warrants for my arrest, and even incarceration. Psychologically, it is a devastating turn of events for a man who has never committed any crime save minor traffic violations(i.e. speeding, no right on red, etc.). During this process I have realized while the system has tremendous amounts of resources for women, men our on their own. I have looked for services for men and there are none if you are a middle class bloke or you dress the part. Truth be told my divorce has bankrupted me, rendered me homeless, and now has alienated me from my children. The family courts deserve their reputation as “Dens of Evil” because I and many other men have lost everything at the whims of a vindictive spouse and hands of the family court judges. It is people like Ari, who give me hope that there is a way to work through the system to get results. The only thing I hold hope onto is that someday I will get to see my children again. Here’s to HOPE!

    • lawrence berezin April 28, 2014 at 4:51 pm #

      Dear NJSKY,
      Heartbreaking- but an honest description of the nightmare of divorce.
      I’m happy that you found inspiration in Ariel’s story. And, there’s more to come…
      Good luck.
      Best,
      Larry

    • ArielSchochet April 28, 2014 at 5:40 pm #

      That you so much for YOUR inspiration. I’m very touched. These are crimes that are moral imperatives to correct. We all need to keep going after the parts of the system that are so completely unjust. Please reach out to me…I would love to see if I can be of help in any way. Larry can give you my contact info if you are interested.

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