PAMELA MACEK VS. HENRY PEISCH (FM-02-0896-10, BERGEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3291-15T4
PAMELA MACEK,
Plaintiff-Respondent,
v.
HENRY PEISCH,
Defendant-Appellant.
__________________________
Argued October 18, 2017 – Decided November 6, 2017
Before Judges Fuentes, Koblitz and Suter.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-0896-10.
Adrián E. Bermúdez argued the cause for
appellant.
Pamela Macek, respondent, argued the cause pro
se.
PER CURIAM
Defendant Henry Peisch appeals from a March 24, 2016 order,
which confirmed an earlier finding that he was not indigent and
incarcerated him for non-payment of spousal and child support. We
dismiss his appeal based on the legal doctrine of fugitive
disentitlement. A litigant may not obtain the protection of our
judicial system to appeal a non-indigency finding while avoiding
arrest on an outstanding child-support bench warrant. See Matison
v. Lisnyansky, 443 N.J. Super. 549, 550 (App. Div. 2016).
Defendant was $101,010.85 in arrears when he came before the
court December 14, 2015 after an arrest for non-payment of support.
See Pasqua v. Council, 186 N.J. 127, 153 (2006) (holding that
parents arrested on warrants for nonsupport must be brought before
the court and, if indigent, afforded counsel prior to coercive
incarceration). Defendant's most recent support payment was $7
sixteen months before the hearing. The court reviewed a January
2015 probation interview of defendant regarding his financial
situation. See AOC Directive # 2-14 (describing the process to
be used by the court when a parent is arrested on a child-support
warrant). Defense counsel represented at oral argument before us
that defendant has sued all three lawyers appointed to represent
him at different child support enforcement hearings. We held
previously that appointed counsel's conflict in representing
defendant based on a malpractice lawsuit was not grounds to deny
defendant counsel, and that, should he be found indigent in the
future, counsel should again be provided by the court prior to
coercive incarceration. Macek v. Peisch, No. A-3721-14 (App. Div.
Sep. 15, 2016) (slip op. at 8-9).
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On this occasion, in December 2015, the court asked defendant
questions to supplement the outdated probation interview.
Defendant revealed that, although he had earned about $130,000 in
a prior year, and an annual salary of $110,000 had been imputed
to him at the time of his divorce, he was currently unemployed.
Defendant, who is right-handed, said his left wrist was injured
seven years before, but he is otherwise healthy. He is supported
by his eighty-two-year-old mother. He lives in her rented home,
for which she pays about $3800 per month in rent. She provides
for his needs, including a cellular phone. The court found he was
willfully unemployed and not indigent, and gave defendant an
opportunity for another ability-to-pay hearing after retaining
counsel. Another judge subsequently denied reconsideration of the
determination of non-indigency. It is from this March 2016 order
denying reconsideration that defendant appeals.
After the court did not find defendant to be indigent, and
found him to be willfully unemployed, defendant was incarcerated
in the Bergen County work release program facility at the Bergen
County Jail. Due to his refusal to cooperate with the program,
he was later placed in general population at the jail. We were
informed at oral argument by defendant's appellate counsel, who
was not appointed by the court, that defendant was subsequently
released and another warrant was later issued for his arrest for
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failure to pay support after his release. Defendant has not
surrendered to face this warrant. Because defendant is a fugitive,
we dismiss this appeal.
Dismissed.
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