A-3601-13t2 Ariel Schochet v. Sharona Schochet

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3601-13T2
ARIEL SCHOCHET,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
April 23, 2014
v.
APPELLATE DIVISION
SHARONA SCHOCHET
(n/k/a GROSSBERG),
Defendant-Respondent.
________________________________________________________________
Submitted February 28, 2014 - Decided April 23, 2014
Before Judges Fisher, Espinosa and Koblitz.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen
County, Docket No. FM-02-223-11.
Mark Musella (Mason & Musella), attorney for
appellant.
Kantrowitz, Goldhamer & Graifman, P.C.,
attorneys for respondent (William T.
Schiffman, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
We granted plaintiff's application to seek emergent relief
from an order that denied his request for the appointment of
experts at public expense to testify at an ability to pay
hearing1 conducted pursuant to Rule 1:10-3. Relying upon Pasqua
v. Council, 186 N.J. 127 (2006), he argues that such appointment
is constitutionally required because he faces possible
incarceration if the trial court finds he willfully failed to
pay his support obligations. For the reasons that follow, we
conclude he has failed to show that the appointment of experts
at public expense is constitutionally required in this case.
The facts and procedural history, as represented by the
parties, can be summarized as follows:
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
1
This hearing is now more aptly called an "ability to comply
hearing" as set forth in Directive #02-14, (the 2014 Directive)
issued by the Administrative Office of the Courts on April 14,
2014, and available at http://www.judiciary.state.nj.us/
directive/2014/dir_02_14.pdf (last visited April 15, 2014).
2 A-3601-13T2
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 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.
On January 31, 2014, less than one week before the
scheduled hearing, plaintiff's counsel wrote to the Bergen
County Counsel and requested that the County retain David B.
Stein, Ph.D., an employability expert, and an as-yet-
unidentified certified public accountant for plaintiff. He
stated:
Both experts are needed to testify as to Mr.
Schochet's employability and his past,
present and future earnings, income, job
placement and his current ability to pay
3 A-3601-13T2
child support. It is necessary and
essential to our case and to the issue of
Mr. Schochet's current ability to pay child
support that we retain these experts.
His requests were rejected by Bergen County Counsel and
denied by the trial court by order dated February 6, 2014. An
ability to pay hearing commenced in February 2014 and was
adjourned to April 30, 2014, in part, to permit the trial court
to consider the results of plaintiff's ninety-day review by his
current employer.
Plaintiff submitted an application for leave to file an
emergent motion allowing him to appeal from the trial court's
order denying his request. As defendant correctly points out,
this order is interlocutory. Nonetheless, we exercise our
discretion to grant leave to appeal from the February 6, 2014
order in the interest of justice, R. 2:2-4, and now affirm the
trial court's order.
In Pasqua v. Council, supra, the Supreme Court held that
"the appointment of counsel to assist parents found to be
indigent and facing incarceration at child support enforcement
hearings" was mandated by both the Fourteenth Amendment Due
Process Clause of the United States Constitution2 and the New
2
The United States Supreme Court has since held that the
appointment of counsel in such proceedings is not automatically
required by the United States Constitution. Turner v. Rogers,
(continued)
4 A-3601-13T2
Jersey Constitution, Article I, Paragraph 1. Id. at 146.
Plaintiff argues that Pasqua also requires the appointment of
experts to testify at his ability to pay hearing. We disagree.
The 2014 Directive regarding the enforcement of child
support orders identifies two issues a trial court must decide
when an obligor is taken into custody on a child support-related
warrant.3 First, the trial court must determine "whether the
obligor is indigent for representation purposes." 2014
Directive, supra, at 2. Then, the trial court must "make a
second finding as to the obligor's ability to comply with the
current child support obligation, that is, a finding as to the
obligor's 'ability to pay.'" Ibid.
As a preliminary matter, there has been no finding that
plaintiff is indigent. He represents that he is currently
employed, earning $600 per week.4 Moreover, although Pasqua
(continued)
___ U.S. ___, ___, 131 S. Ct. 2507, 2520, 180 L. Ed. 2d 452, 466
(2011).
3
Directives have the force of law. R.K. v. D.L., 434 N.J.
Super. 113, 130 n.7 (App. Div. 2014).
4
The 2014 poverty guideline for New Jersey ranges from $11,670
for a one-person household to $40,090 for an eight-person
household. U.S. Dep't of Health & Human Servs., 2014 Poverty
Guidelines, available at http://aspe.hhs.gov/poverty/14poverty.
cfm (last visited April 11, 2014). Plaintiff contends that his
income is less than 125% of the federal poverty guidelines
because he should not be considered a one-person household in
(continued)
5 A-3601-13T2
requires the appointment of counsel for indigent obligors
because they face the possibility of incarceration, ibid., it is
silent as to other services that must be provided to the
indigent obligor to protect his or her constitutional rights.
Central to the Court's ruling in Pasqua was its concern
that, "[w]hen an indigent litigant is forced to proceed at an
ability-to-pay hearing without counsel, there is a high risk of
an erroneous determination and wrongful incarceration." Pasqua,
supra, 186 N.J. at 145. Plaintiff has failed to show any
increased risk of an erroneous determination if his requested
relief is denied.
Directive #15-08, (the 2008 Directive)5 issued by the
Administrative Office of the Courts on November 17, 2008,
includes forms that detail the extensive inquiry associated with
an enforcement hearing, including the Probation Child Support
Enforcement Obligor Questionnaire, CN 10819 (the Obligor
Questionnaire), and the checklist of questions to be asked at
the enforcement hearing, CN 11212.
(continued)
light of the fact that his wages are garnished to pay his
support obligation. He does not identify the number of
dependents he claims.
5
Directive #15-08 is available at http://www.judiciary.state.
nj.us/directive/2008/dir_15_08.pdf (last visited April 11, 2014).
6 A-3601-13T2
Prior to the ability to pay hearing, the Probation
Department elicits information from the obligor to complete a
questionnaire that provides the court with relevant facts such
as: the obligor's residence status; whether support is paid on
another case; the number of dependents; whether the mortgage or
rent payment is current; employment status and history; any
reason for unemployment and the length of unemployment; other
sources of income such as general assistance, disability, or
workers compensation; whether the obligor has medical insurance;
the obligor's monthly expenses for housing, loans, support
obligations, medical insurance, household utilities, and other
household expenses; the value of assets; and details of the
obligor's total debts, including loan balances, medical debts,
debts owed to other courts, credit card balances, and civil
judgments owed.
The trial court also addresses the obligor directly. The
2008 Directive provides suggested inquiries to assist the court
to clarify "inconsistent, inconclusive or ambiguous answers,"
determine why support has not been paid and how much the obligor
can pay that day, and to ensure the obligor has a plan to
address arrearages. See id. at 23. Pursuant to the 2014
Directive, the trial court is further required to make "specific
factual findings regarding the obligor's ability to comply with
7 A-3601-13T2
the child support obligation" and, if coercive incarceration is
ordered, the court's justification for ordering it. 2014
Directive, supra, at 2-3; see also id. at 5-7 (Revised Form
promulgated by Directive #02-14, CN 11213).
The information provided by the Obligor Questionnaire and
the court's further questioning can reasonably be expected to
provide the trial court with sufficient information to make the
required determination in all but the extraordinary case. 6
Although not addressing the adequacy of the information and
inquiry conducted pursuant to the 2008 Directive, plaintiff's
argument presumes its insufficiency. In support of this motion,
plaintiff's counsel states:
In order to show that he is unable to secure
[a job paying enough to cover his
obligation], the Plaintiff has prepared
hundreds of pages of employment search
documents which show the evidence of his
search within and outside his primary field.
To make a proper determination, the
court will need to examine the evidence
presented and evaluate if the Plaintiff has
made an appropriate job search commensurate
with his history and experience. I believe
that for the court to make this evaluation,
the specifics of the employability of the
Plaintiff are sufficiently complex that in
order for a just decision to be made, an
expert is needed that would qualify the
6
It hardly bears noting that the case in which the financial
information for an indigent obligor would be so complex as to
require expert testimony will be extraordinary indeed.
8 A-3601-13T2
Plaintiff's employability and provide an
independent analysis.
. . . Without the expert testimony, the
Court will be asked to make this
determination without the proper foundation
as to the specifics of Plaintiff's area of
expertise and how the marketability for such
services has materially changed in the past
nine years.
Plaintiff has identified no documents other than the
"hundreds of pages of employment search documents" that require
expert analysis. In relying upon the fact that similar expert
testimony is frequently admitted in Family Court, he blurs the
very real distinction between the issue decided at an ability to
comply hearing and that decided when similar evidence is
considered at a plenary hearing.
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
9 A-3601-13T2
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.
An example helps to illustrate the difference between the
two hearings. Let us assume an 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
7
The 2014 Directive observes, "In most situations, modifications
of the child support obligation should occur as part of a
separate filing." Id. at 3.
10 A-3601-13T2
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." Child Support Guidelines,
Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A
at 2589 (2014) ("Imputing Income to Parents"). The Appendix
provides guidance on the manner in which such income should be
imputed. Ibid.
The review of employment search evidence in an ability to
comply hearing has a far more limited purpose: to determine
whether the failure to pay was willful. Let us assume the
matter comes to court for enforcement of the $350 support order
pursuant to Rule 1:10-3 because the obligor has paid only $250
per week and arrears have accumulated. The court will not
determine whether $250 per week is the appropriate level of
support; it will determine what amount of the $350 court-ordered
support the obligor was able to pay. If the court should
11 A-3601-13T2
determine that the obligor paid what he or she was able to pay,
no incarceration would be warranted despite the accrual of
arrears and the fact that the amount of support is unchanged.
See 2008 Directive, supra, at 8 (stating that, in ordering
coercive incarceration, "it is essential that the court at the
hearing find the obligor has an ability to pay an amount
acceptable to the court"); see also Pierce v. Pierce, 122 N.J.
Super. 359, 361 (App. Div. 1973) (reversing an order entered
following an ability to pay hearing and stating, "[N]owhere is
demonstrated in the record before us the ability of defendant to
comply with the order sought to be enforced by the coercive
remedy."). As a result, the judge conducting an ability to
comply hearing will generally not need to delve beyond
determining whether the obligor has made a good faith effort to
secure a reasonable level of employment.
Moreover, although plaintiff states he would retain such
experts himself if not indigent, the admissibility of such
testimony remains subject to N.J.R.E. 702. Expert testimony is
admitted when the subject matter is "beyond the ken of the
average [factfinder]," DeHanes v. Rothman, 158 N.J. 90, 100
(1999), and "will assist the trier of fact to understand the
evidence or to determine a fact in issue." N.J.R.E. 702. No
12 A-3601-13T2
showing has been made here that the subject matter of the expert
testimony sought is beyond the ken of a Family Part judge.
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
13 A-3601-13T2
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.
Affirmed.
14 A-3601-13T2