Class Action / Civil Rights under 42 U.S.C. § 1983
Anne Pasqua, et al v. Hon. Gerald J. Council, et al
Docket No. 56,944 (Supreme Court of New Jersey) (Pending)
A-6875-02T3 (Superior Court, Appellate Division) (Ignores merits – misinterprets rule of precedent)
MER-L-406-03 (Superior Court, Law Division, 2003) (Addresses merits – grants relief)
316 f.3d 412 (3d Cir. 2003) (United States Court of Appeals for the Third Circuit, 2003) (Ignores merits – abstains)
Case No. 00CV-2418 (District Court, 2000) (Ignores merits – abstains)
Pasqua v. Council challenges New Jersey’s unconstitutional practice of failing to appoint attorneys for indigent child support obligors at enforcement hearings where they face incarceration. In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that “an indigent litigant has a right to appointed counsel … when, if he loses, he may be deprived of his physical liberty.” The right to appointed counsel when a (civil or criminal) litigant’s liberty is at stake was also established by the Supreme Court of New Jersey in Perlmutter v. DeRowe, 58 N.J. 5 (1971), by the New Jersey Appellate Division in In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div. 2002), and via New Jersey Court Rule 5:3-4 . Until April 24, 2003, New Jersey was one of approximately a half dozen states that incarcerated unrepresented, indigent litigants at enforcement hearings without providing counsel.
In September, 2003, the AOC issued a temporary directive instructing trial courts to diligently inquire into the indigent status of anyone facing incarceration applying the same standard used when a defendant requests a public defender in a criminal matter. As no pool of attorneys exists to represent indigent Family Court litigants, incarceration is not available as an option at ability to pay hearings. In March, 2004, the AOC issued Directive #2-04, making the terms of the temporary directive permanent.
On September 10, 2004, the Appellate Division (Judges Barbara Byrd Wecker, Harvey Weissbard, and Philip Carchman) reversed Judge Feinberg’s ruling requiring that counsel be appointed. The Appellate Division explicitly avoided the Constitutional merits and misapplied the rule of precedent. Four days later, the AOC vacated Directive #2-04.
On September 23, 2004, I applied on an emergent basis and received a stay from Justice Virginia A. Long. As a result of the stay, the AOC issued a Directive vacating its September 14 Directive and reinstating Directive #2-04 in its entirety.
Should the Supreme Court not ultimately overturn the Appellate decision, I will return the matter to federal court as quickly as possible. Remember, the Third Circuit only abstained and returned the case to State Court after expressing that it did “not intend to minimize the importance of the constitutional rights asserted” and that it was “confident that any constitutional challenge to state court practice would receive proper consideration by the New Jersey courts.” 316 f.3d 412 (3d Cir. 2003).
As a result of the Supreme Court stay, Judge Feinberg’s September 19, 2003 Order and the AOC memo are in full force and effect. No unrepresented, indigent child support obligor can be incarcerated at an enforcement hearing pending a final decision from the Supreme Court.
Leonard, et al v. Blackburn, et al, MER-L-3761-01
This state level class action civil rights suit addresses the arrest and jailing of defaulted child support obligors for weeks – sometimes even months – at a time without review of their incarcerations, and the ongoing inadequacy of the evidence adduced at such hearings that the jailed obligor has the current ability to pay any release amount set. In the worst case, a completely indigent obligor spent 93 days in jail before receiving any type of hearing at all, and the majority of plaintiffs had release amounts set without any evidence whatsoever that they had the ability to pay the thousands of dollars required for their release.
On January 22, 2002, Hon. Linda Feinberg, A.J.S.C. (Mercer) issued a ruling denying plaintiffs’ application for class certification and declined to address the issue of the adequacy of findings made at so-called “Ability to Pay” hearings. However, the court did address the issue of obligors being held for inordinate amounts of time without being reviewed (at least as to the named defendants). From now on, anyone arrested for defaulting on a child support obligation (or failing to appear for an enforcement hearing) must have a hearing within 72 hours and must thereafter be reviewed every two weeks.
On March 25, 2002, the trial Court denied plaintiffs’ application for counsel fees and costs, finding that the above order did not constitute “prevailing” for purposes of a fee award. Although rejecting this patently ridiculous finding, the Appellate Division affirmed based on a remote Federal Statute that had not been cited by the defendants in the trial court, not asserted by the trial court on its own, and not argued by defendants in the Appellate Division. Good old “Jersey Justice” on the counsel fee issue, but the important issue (the timing of the hearings) was addressed.
Superior Court of New Jersey: Appellate Division
Bayes v. Wallace A-5176-03T5 (App Div 2005)
Sat Below: Hon. Thomas P. Kelly, J.S.C. (Mercer County)
(Pending) The trial Court erred by entering a restraining order after (1) denying defendant’s request for an adjournment to retain counsel when plaintiff raised allegations at trial that went beyond those contained in her complaint (2) by relying on allegations that were previously adjudicated in defendant’s favor (3) by failing to permit defendant to cross examine plaintiff or her witness and (4) by failing to inform defendant of the serious nature and repercussions of a Domestic Violence restraining order..
State v. Harris, A-6485-01T3 (App.Div. 2004)
Sat Below: Hon. Laura M. LeWinn, J.S.C. (Mercer County)
The trial Court erred in convicting defendant of violating the parties’ mutual Domestic Violence restraining orders where there was no evidence that defendant’s outburst at his former wife rose to the level of quasi-criminal harassment.
Owens v. Owens, A-6005-00T2 (App.Div. 2003)
Sat Below: Hon. Roger W. Daley, J.S.C. (Middlesex County)
(Appearing for respondent) The trial court did not abuse its discretion in awarding $425.00 per week in permanent alimony and $127.00 per week in child support in light of the long-term (17 year) marriage, plaintiff’s serious disabilities, and defendant’s earnings history in excess of $70,000 per year. Appellant’s claim that the judgment impoverishes defendant is frivolous as it does not take into account the tax effects of an alimony award.
Goldberg v. Goldberg, A-003205-00T3 (App.Div. 2002)
Sat Below: Hon. Audrey P. Blackburn, J.S.C. (Mercer County)
The trial court erred in failing to compel custodial parent to repay child support received after the emancipation of the “child.” This is a two page reversal; I have found it helpful to include a copy of this decision with all applications filed to have post-emancipation child support returned to the payor. Without supplying this law, many judges will erroneously terminate child support only to the filing date of the motion – this is within the Court’s discretion if support is reduced or terminated based on a change in circumstances. As this decision affirms, it is never permissible when support is terminated as a result of emancipation – all support paid since emancipation must be refunded.
Sharp v. Sharp, 336 N.J.Super. 492 (App. Div. 2001)
Sat below: Hon. Gerald Council, J.S.C. (Mercer County)
In the first appellate division case in New Jersey to address the intricacies of interstate child support jurisdiction under the Uniform Interstate Family Support Act (UIFSA), the appellate division reversed a trial court finding of in personam jurisdiction over a California resident and clarified procedural aspects of motions for reconsideration.
Cruz v. Cruz, (App.Div. March 19, 2001)
Sat Below: Hon. Rosalie B. Cooper, J.S.C. (Ocean County)
In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. “A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
W.M. v. T.M., A-4789-99T1 (App.Div. 2000)
Sat below: Hon. Alan J. Pogarsky, J.S.C. (Mercer County)
The trial court erred by resolving the material fact question of whether appellant had abused his daughter without conducting a plenary hearing. In light of the allegations made and the inherent difficulty of disproving same, appellant should have been granted access to the files of the Division of Youth and Family Services and the Mercer County Prosecutor’s Office.
Weinstein v. Weinstein (App.Div. March 27, 2000)
Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County)
In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. The appellant was to be released immediately and the matter was remanded for the trial court to conduct an ability to pay hearing.
Weinstein v. Weinstein (App.Div. April 7, 2000)
Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County)
After the initial remand, a second trial court order incarcerating defendant was reversed and appellant ordered released immediately. Although the findings of the trial court as to appellant’s ability to earn were affirmed, the remedy chosen (incarceration until payment of $28,163.10 towards arrears) was erroneous as the record was devoid of evidence that defendant had the ability to pay the release amount ordered by the Court. “We disagree only with the remedy chosen by the judge. An order incarcerating a debtor-spouse … presupposes that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution. R. 1:10-3.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Bachman v. Cohen (App.Div. April 12, 2000)
Sat Below: Hon. Thomas W. Cavanaugh, Jr., J.S.C. (Monmouth County)
In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. A finding that an obligor has not established changed circumstances warranting modification of a support order is not synonymous with, and cannot substitute for, a finding based on substantial, credible evidence that the obligor has the ability to comply with the order. “The purpose of an order incarcerating a judgment debtor is to induce compliance with the order. In such cases, the incarcerated party has the key to freedom in his/her hands because the debtor-spouse has the ability to comply with the order as a condition for release.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
MCBSS o/b/o Brookins & Williams v. Tolbert, (App.Div. June 7, 2000)
Sat below: Hon. Gerald Council, J.S.C. (Mercer County)
In this emergent appeal, the trial court’s Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court. The incarceration of defendant in the absence of any showing that he could pay the $10,000 purge figure set by the Court was “manifest error. A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply.” The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court’s order.
Margrabia v. Margrabia, A-1179-97T1 (App.Div.), Cert denied 161 N.J. 250(1999)
Sat Below: Hon. John Tomasello, J.S.C. (Gloucester County)
The trial court erred in its determination that it could award “equitable credits” after finding that the parties’ prenuptial agreement was valid and enforceable and by increasing a compensatory damages award based on considerations of the defendant’s assets. Successfully opposed adversary’s petition for certification to the Supreme Court of New Jersey.
Gretel v. Essex, A-007-97T1 (App.Div. 1998)
Sat below: Hon. Charles Delehey, J.S.C. (Mercer County)
In this wrongly decided unsuccessful appeal, the appellate division extended the parameters of the Prevention of Domestic Violence Act’s “former household member” jurisdictional prerequisite to include a brief co-tenancy with no romantic nor familial relationship between the litigants and affirmed the issuance of a restraining Order based on defendant’s “harassment” of plaintiff by leaving six voice mail messages at her place of employment. (Only the reply brief is available, I was not original counsel on the appeal) Please note that, at the request of one of the litigants, I have changed the names and docket number on this case.
Hartmann v. Marinuzzi, A-3676-93T2 (App.Div. 1996)
Sat Below: Hon. Roger Mahon, J.S.C. (Hunterdon County)
David Perry Davis, while in final year of law school, working with several attorneys and the litigant pro se.
The trial court abused its discretion in denying defendant-appellant’s motion to vacate a default judgment, entered while she was suffering from severe alcoholism, that (1) deprived appellant of a palimony claim after a 17 year live-in relationship with respondent, (2) deprived her of the ability to litigate her assault counts, and (3) deprived her of custody of her son. On remand, this case made legal history as the first case ever in the state of New Jersey where a jury was empanelled in the Family Part to hear a domestic tort claim. The case was settled prior to the commencement of the jury trial.