Enough is Enough!
By Snyder & Sarno on May 06, 2014
We have previously blogged about Ari Schochet, a former Wall Street portfolio manager who owes over $200,000 in alimony and child support arrears to his ex-wife and has been ordered incarcerated for failure to comply with his court-ordered support obligations. According to the New Jersey Law Journal, Schochet was appointed an attorney for an ability-to-pay hearing, even though the court refused to allow him to proceed as an indigent. Schochet’s appointed attorney requested that the county counsel’s office retain two expert witnesses for the hearing, one to testify as to Schochet’s employability and the other to testify as to Schochet’s past, present, and future earnings.
The trial court denied the request and Schochet filed an emergent appeal arguing that expert witnesses were constitutionally required under Pasqua v. Council. Pasqua held that “the appointment of counsel to assist parents found to be indigent and facing incarceration at child support enforcement hearings” was mandated by the federal and state constitutions. Moreover, Pasqua held that, before incarcerating a parent for failure to make child support payments, the court must find that the parent has the ability to pay and has willfully refused to do so. The New Jersey Appellate Division, in Schochet v. Schochet, disagreed with Schochet’s argument.
The Appellate Division first referenced the 2014 Directive, which was recently released (and discussed on our blog) for a court to use when a parent who has failed to comply with court-ordered support obligations has been taken into custody. Under the Directive, the court must first determine whether the parent is indigent and then must determine the parent’s ability to pay. Here, the Court pointed out, there has been no finding that Schochet is indigent.
The Court then explained that Schochet had “blurred the lines” between an ability to pay hearing and a plenary hearing. An ability to pay hearing does not determine what the support obligation should be, only whether the parent can comply with the current obligation that was previously ordered by the court. Additionally, it is not a substitute for a hearing to modify a child support order based on changed circumstances. Rather, an ability to pay hearing is simply to determine whether the parent has willfully failed to pay child support, as in he or she had the ability to pay but did not do so. Therefore, expert testimony is neither necessary nor constitutionally required at an ability to pay hearing.
Further, the Court explained, under the New Jersey Rules of Evidence, expert testimony is only admissible “when the subject matter is beyond the ken of the average factfinder.” Family part judges frequently examine financial information similar to what is used at an ability to pay hearing. Therefore, expert testimony would not assist the judge and would thus be inadmissible.
Under Pasqua, if a parent has failed to make his or support obligations and the court is considering incarceration as an enforcement mechanism, the court is constitutionally required to determine whether the parent is indigent, and if so, must advise the parent that he or she has the right to an attorney. Then, the court can only incarcerate the parent if it determines that he or she has the ability to pay and has willfully failed to do so. Now, under Schochet, it has been confirmed that neither the federal nor state constitution require expert witnesses, like they do attorneys, at ability to pay hearings.
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