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SUPERIOR COURT
OF NEW JERSEY
APPELLATE
DIVISION
APPLICATION TO
FILE APPEAL OR MOTION ON AN EMERGENT BASIS
TO: Hon.
James M. Havey, JAD DATE: March 4, 2001
FROM: David
Perry Davis, Esq. TELEPHONE: 732-274-9444
The
following questions are to be answered by the attorney or pro se
litigant requesting emergent relief.
This questionnaire is simply designed to determine if the application be
handled in the ordinary course or on an emergency basis. COMPLETION OF THIS APPLICATION DOES NOT IN
ANY SENSE CONSTITUTE THE FILING OF AN APPEAL OR MOTION. There is no right to be heard orally on an
emergency application.
CASE NAME: Cruz v Cruz
1. What is the vicinage of the matter? (i.e.
what judge, in what county or what agency entered the decision?)
Hon. Rosalie B. Cooper, JSC, Ocean County
2. a)
What is your name, address, phone number and fax number?
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
b)
Whom do you represent?
Juan Cruz (For appellate purposes only)
3. What is your adversary's name, address, phone
number and fax number?
Ocean County Probation Dept
PO Nancy Cain
Ocean County Justice Complex
PO Box 2191
Toms River, NJ 08754
4. Do you have a written order or judgement
entered by the judge or a written agency determination? YOU MUST ATTACH A COPY OF THE ORDER,
JUDGEMENT OR DECISION.
No order has yet been received by any
party. Please note that in a prior
application (Tolbert) that mirrors the present one, no written order was
ever entered. A copy of the (2 page)
Order on Emergent Application is enclosed; the Appellate Division acted without
a written order in that matter after both Judge Skillman's law clerk and I
attempted unsuccessfully to obtain a written order from the trial court. I have written the Probation Department and the
Judge and requested that an Order be issued and faxed to me.
5. Are there any claims against any party below, either in this or a
consolidated action, which have not been disposed of, including counterclaims,
cross-claims, third-party claims and applications for counsel fees? IF SO, THE DECISION IS NOR FINAL, BUT RATHER
INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.
No; this is a post-judgement matrimonial matter brought pursuant
to R. 5:7-5 and R. 1:10-3.
6. Have you filed for a stay before the trial
court or agency? If so, do you have a
court order or agency decision denying or granting same?
No; client was pro-se at the support
enforcement hearing. Also, technically
no stay is being sought, summary reversal is being sought.
7. If the order or agency decision is
interlocutory, are you filing a motion for leave to appeal?
Not applicable
8. If interlocutory, are you filing a motion to
stay the trial court or agency proceeding?
Not applicable
9. If the order, judgement or agency decision is
final, have you filed a notice of appeal?
Not yet; will do so immediately upon
decision on this application.
10. What is the essence of the order, judge or
agency decision?
Defendant was incarcerated for child
support arrears without a proper ability to pay hearing and without any
allegation that he has the ability to pay.
11. Has any aspect of this matter been presented
to or considered by another judge or part of the Appellate Division by emergent
application or prior appeals proceedings?
If so, which judge or part?
Not as to this party. Four prior emergent applications of a
similar nature have been filed and all were granted.
12. What is the nature of the emergency?
Defendant is being deprived of his liberty.
13. What is the irreparable harm?
Unconstitutional or improper deprivation of
liberty / incarceration constitutes irreparable harm.
14. What relief do you seek?
Release pending an ability to pay hearing.
Minor supplementation of the record on
appeal.
15. What citation is most important for the
proposition that you are likely to prevail on appeal?
Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996),
Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v.
Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150
N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34 N.J.
331 (1961), Lake v. Speziale, 580 F Supp 1318 (D.Conn. 1984). See also unpublished decisions on emergent
applications in Weinstein v. Weinstein, (App. Div., 3/27/00), Weinstein
v. Weinstein, (App. Div., 4/7/00), Bachman v. Cohen, (App.Div.
4/12/00), Williams & Brookins v. Tolbert, (App.Div. 6/7/00) (copy
enclosed).
16. Have you notified your adversary that you will
be appealing?
Yes, by copy of this application
17. If this application is being made during trial, does the judge know
of it?
Not
applicable
18. Have you served your adversary with all
papers?
Yes
19. Have any transcripts been ordered
(particularly of the trial judge's challenged ruling)?
Yes - in possession of appellant (copy
enclosed, 4 pages).
If so, when will the transcripts be
available?
See above
20. Please give me a brief summary of the facts
of your case:
Defendant-appellant is in arrears on a child support
obligation. He has arrears of
$57,748.74 and an ongoing obligation of $90.00 for current support, $10.00
toward arrears. The last payment made
was in November of 2000 when defendant borrowed $2,000 following his
arrest. Defendant is incarcerated in
the Ocean County Jail. A brief hearing
as to his continued incarceration was conducted on February 27, 2001. At that hearing, it was uncontradicted that
defendant is indigent and unemployed.
No inquiry was made into defendant's assets. A letter submitted by defendant's sister and considered by the
Court on the record during the hearing indicated that defendant has psychiatric
difficulties and is unable to work. The
trial court (correctly) ordered that defendant be evaluated and pursue SSI if
he is disabled. The trial court
(incorrectly) ordered defendant to remain incarcerated in the interim. Defendant seeks summary reversal of the Order
incarcerating him pending a proper ability to pay hearing.
The "children" involved are both over 18 and
neither is a full-time college student.
Defendant seeks to supplement the record to establish this undisputed
fact. Defendant was pro se until
his family hired counsel for this appeal; he has never applied to have the
children declared emancipated. This is
a "pure debt" incarceration.
6/99
NOTICE OF APPEAL
superior court of new jersey - appellate
division
title
of action as captioned below attorney of record
name David
Perry Davis, Esq.
Brenda Cruz
address
31
Jefferson Plaza
Plaintiff Princeton,
NJ 08540
phone
no. (732)
274‑9444
vs.
attorney
for Defendant
Juan Cruz
on appeal from
Defendant Superior Court of New Jersey
Chancery
Division, Family Part
Ocean
County
trial
court or state agency
FM-15-354-85___________________
trial
docket or indictment number
notice
is hereby given that Defendant appeals to the superior court of n.j.
appellate division from the judgement (X ) order (
) other (specify)
entered
in this action on February 27, , 20 01 in favor of Plaintiff
if
appeal is from less than the whole specify what parts or paragraphs are being
appealed.
are
all issues as to all parties disposed of in the action being appealed? yes (X ) no ( )
if
not is there a certification of final judgment entered pursuant to r. 4:42-2? n/a
priority
under r. 1:2-5 yes ( ) no (X ) applicable section under
the rule
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in criminal quasi-criminal and juvenile
cases not incarcerated ( ) incarcerated ( )
confined at
give a concise
statement of the offense and of the judgement date entered and any sentence
or disposition imposed
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1/ notice of appeal has been served on: date
of type of
name service service
trial court
judge Hon. Rosalie B. Cooper, JSC
trial court
clerk state agency
attorney general or
governmental
office under
r. 2:5-1 (h)
other
parties
name and designation date of type of
name service service
Ocean County Probation Dept / Child Support Enforcement Division
Brenda Cruz
3/6/01 FedEx
i hereby certify that i have
served a copy of this notice of
appeal on each of the persons
required as indicated above
March 4 2001
signature of attorney of record
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2/ prescribed transcript request form has been
served on:
(also indicate if sound
recorded)
date of
type of
name service service
administrative
office of the courts
chief court
reporting services
court
reporter's supervisor
clerk of county
or agency
court reporter
i
hereby certify that i have served the prescribed court
transcript
request form on each of the
above persons
and
paid the deposit as required by r. 2:5-3(d)
n/a already in possession
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signature of attorney of record
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3/ i hereby certify that:
( ) there
is no verbatim record
(X ) transcript is in the possession of the attorney
of record
( ) a motion for abbreviation
of transcript has been filed with the court or agency below
( ) a
motion for free transcript has been filed with the court below
___________________________ 20____ __________________________________
signature of attorney of record
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superior
court of new jersey - appellate division
civil case information statement
────────────────────────────────────────
title in full for
official use only
appeal
docket no.
Brenda Cruz
Plaintiff notice
of appeal filed:
vs.
date
sent:
Juan Cruz
Defendant
────────────────────────────────────────
appellant's attorney(s): Plaintiff
Defendant
Other (Specify)
name address telephone client
David Perry Davis, Esq. 31 Jefferson Plaza (732) 274‑9444 Defendant
Princeton,
NJ 08540
respondent's attorney(s)*:
name address telephone client
Ocean County Probation Dept. PO Box 2191
Child Support Enforcement Unit Ocean County Justice Complex
Toms
River, NJ 08754
Brenda Cruz, pro se
[indicate which parties, if
any, did not participate below or who were no longer party to the action at the
time of entry of the order/judgment being appealed.] Brenda Cruz, plaintiff,
did not participate. Application for
enforcement hearing was brought by Ocean County probation, child support
enforcement unit. Arrears are owed to
OCBSS. Plaintiff never consulted as to
enforcement application being made.
────────────────────────────────────────
give date and summary of
terms of judgement entered below:
Are
there any claims against any party below, either in this of in or a
consolidated action,
which
have not been disposed of, including counterclaims, cross-claims, third party
claims
and applications for counsel fees? Yes
No X
If
so, has it been certified as final pursuant to R. 4:42-2? n/a Yes
No
(If not, leave to appeal must be
sought. R. 2:2-4, 2:5-6)
Is
the validity of a statute, executive order, franchise or
constitutional
provision of this State questioned? (R.
2:5-1) Yes No X
────────────────────────────────────────
give a brief statement of the
facts and procedural history:
Defendant was improperly incarcerated
without an ability to pay hearing, and has now been incarcerated for in excess
of 10 days. See attached application
for leave to file an emergent appeal.
────────────────────────────────────────
to the extent possible, list the proposed
issues to be raised on this appeal, as they will be described in appropriate
point headings pursuant to r. 2:6-2(a)(5).
(appellant or cross appellant only.)
I. See
attached application for leave to file an emergent appeal.
II.
Such other points as research and preparation of the appellant's brief
and appendix may reveal.
if you are appealing from a
judgment entered by a trial judge sitting without a jury or from an order of
the trial court, complete the following:
1. Did the trial judge issue oral findings or
opinion?
Yes
X No
If so, on what date? February 27, 2001
2. Did the
trial judge issue written findings or opinion?
Yes No X
If so, on what date? __________________
Caution: Before you indicate that there was neither an
opinion nor findings, you should inquire of the trial judge to determine
whether findings or an opinion was placed on the record out of counsel's
presence or whether the judge will be filing a statement or opinion pursuant to
R. 2:5-1(b).
Date of your inquiry: __________________
Will the trial judge be filing a statement or opinion
pursuant to R. 2:5-1(b)?
Yes No X
────────────────────────────────────────
All civil appeals will be screened under the Civil
Appeals Settlement Program to determine their potential for settlement or, in
the alternative, a simplification of issues, abbreviation of transcript and any
other matters that may aid in the disposition or handling of the appeal. Please consider these when responding to the
following question.
State whether you think this case may benefit from a
conference. Yes No X
Explain your answer.
A negative response will not necessarily rule out the scheduling of a
pre-argument conference.
Defendant should be immediately released
pending a proper ability to pay hearing; at said hearing he should not be
incarcerated absent evidence his non-compliance constitutes a willful disregard
of the child support obligation and/or he has the present ability to comply.
────────────────────────────────────────
1. is
there any case now pending or about to be brought before this court which:
(A) Arises from
substantially the case or controversy as this appeal? Yes No X
(B) Involves
an issue that is substantially the same, similar or related to an issue in this
appeal? Yes No X
2. was
there any prior appeal involving the case or controversy?
Yes No X
if the answer to either 1 or
2 above is yes, state:
Case name: Appellate Division Docket No.:
────────────────────────────────────────
Name of
Appellant or Respondent Name of Counsel of Record
Date Signature of Counsel of
Record
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
Attorney for defendant / appellant
───────────────────────────────────────
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Brenda Cruz,
Plaintiff
/ Respondent
vs.
Juan Cruz,
Defendant
/ Appellant
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
Civil Action
NOTICE OF MOTION FOR
EMERGENT RELIEF
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───────────────────────────────────────
PLEASE TAKE
NOTICE that, at a time and place selected by the appellate division, defendant
shall move for an Order:
1. Waiving the required filing fee in this
matter pursuant to R. 1:13-2(a) and granting leave to appeal out of time
pursuant to R. 2:4-1(a);
2. Summarily reversing the trial court's
February 27, 2001 Order pursuant to R. 2:8-3(b) and compelling the
immediate release of defendant pending a proper ability to pay hearing;
3. Ordering that defendant shall not be
re-incarcerated absent a finding, based on substantial and credible evidence,
that he has the present ability to comply with the court orders subject to
enforcement or that he has wilfully failed to comply with any
employment-related conditions or disability-related conditions set by the
court;
4. Permitting minor supplementing of the record
on appeal;
5. For such further relief as the court may
deem equitable and just.
Defendant
shall rely on the enclosed letter brief, certification and attachments.
___________________________
David Perry Davis, Esq.
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
Attorney for defendant
───────────────────────────────────────
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Brenda Cruz,
Plaintiff
/ Respondent
vs.
Juan Cruz,
Defendant
/ Appellant
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
Civil Action
CERTIFICATION
(As to waiver
of filing fees)
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───────────────────────────────────────
DAVID PERRY
DAVIS, ESQ., does hereby certify as follows:
1. I am the attorney for the defendant in this
matter and make this application in support of my motion to waive the
applicable filing fees. I am personally
familiar with all the facts alleged herein.
2. My client is presently incarcerated and
cannot be reached, either in person or by fax, to provide an affidavit
supporting his indigency in connection with this application. However, I have attached (as exhibit A) a
copy of the trial court transcript wherein my client testified as to his
indigency, and (as Exhibit B) a letter from my client's sister, which, although
technically hearsay, was considered without objection by the Court below.
3. I respectfully request that the applicable
filing fees be waived based on Mr. Cruz's inability to pay.
4. I hereby certify that the foregoing
statements made by me are true. I am
aware that if any of the foregoing statements are willfully false, I am subject
to punishment.
___________________________
David Perry Davis, Esq.
DATED:
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
Attorney for defendant
───────────────────────────────────────
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Brenda Cruz,
Plaintiff
/ Respondent
vs.
Juan Cruz,
Defendant
/ Appellant
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-
Civil Action
PROOF OF
SERVICE
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───────────────────────────────────────
DAVID PERRY
DAVIS, of full age, hereby certifies as follows:
1. I am the attorney for defendant in this
matter.
2. On this date, I caused a copy of the
enclosed Notice of Motion, supporting certification, supporting letter brief,
and this Proof of Service to be served upon the following:
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1.
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Ocean County Probation Dept
Child Support Enforcement
Ocean County Justice Center
PO Box 2191
Toms River, NJ 08754
By Fax and regular mail
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2.
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Brenda Cruz
By FedEx
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3. I certify that the foregoing statements made
by me are true. I am aware that if any
of the foregoing statements are willfully false, I am subject to punishment.
__________________________
David Perry Davis, Esq.
DATED:
The Law Office of
David Perry Davis
31 Jefferson Plaza
Princeton, NJ 08540
(732) 274‑9444
(732) 274‑2050 (fax)
DavePDavis@aol.com
───────────────────────────────────────
May XX, 2001
Hon. Edwin H. Stern, JAD
Suite 1101, North Tower
158 Headquarters Plaza
Morristown, NJ 07960-3965
Via Fax:
Re: Cruz v.
Cruz
Docket No.
FM-15-354-85
Appellate
Docket No. A-
Dear Judge Havey:
Please
accept this letter brief in lieu of a more formal brief in support of
plaintiff's application to be immediately released from the Ocean County
Corrections Center pending an ability to pay hearing, and preventing his
re-incarceration unless and until such time as the trial court finds, based on
substantial and credible evidence, that defendant has the present ability to
comply with the present support Orders.
Factual Statement
The record
below is sparse. Mr. Cruz was arrested
on or about February 22, 2001 as a result of his failure to pay child
support. A review of defendant's
incarceration status was held on February 27, 2001. The hearing lasted approximately three minutes.
During that
hearing, the Court stated that it was considering a letter that had been
submitted by defendant's sister (T 4-3 to 4-6). Although the letter was technically hearsay, no objection to it
being considered was raised. That
letter asserted that defendant "suffers from some mental abnormality that
renders him unable to function and process things in the same manner as the
average, normal individual in our society" (2a at 3). She also asserted that she was personally
familiar with defendant and that he is "indigent" (3a at 6). Aside from taking care of his parents, which
he apparently was able to do without difficulty, defendant's sister stated that
defendant "has no job, he has no money, he has no assets." (3a at
6).
The records
of the Probation Department indicated that defendant had paid $2,000 in
November of 2000 (T 3-4 to 3-8) and has arrears totalling $57,748.74. His driver's license had recently been
suspended (T 3-16 to 3-17) and he was not regularly employed, working side jobs
to repay the funds that had provided by his family to secure his release
(T 3-2) and taking care of his disabled parents (.
The trial
Court noted the statements of defendant's sister and indicated that defendant
should be immediately evaluated. No
inquiry was made by the Court as to any savings or assets that defendant could
tap in order to make a payment toward arrears.
No purge amount was set by the Court.
Defendant
has now been incarcerated for at least 11 days and remains unable to obtain to
pay anything toward his arrears.
I. DEFENDANT MUST BE IMMEDIATELY RELEASED AS HE
WAS NOT AFFORDED AN ABILITY TO PAY HEARING AND NO EVIDENCE EXISTS THAT HE HAS
THE ABILITY TO PAY THE ARREARS AMOUNT SET BY JUDGE COOPER ON FEBRUARY 27, 2000.
At the
summary hearing in this matter, which did not occur until defendant had been in
custody for approximately a week, there was no meaningful inquiry into whether
defendant had the present ability to pay a significant portion of the
$57,748.74 in child support arrears that he owes (transcript, generally).
Without a
scintilla of evidence that Defendant has the ability to pay he cannot be
incarcerated for child support arrears.
Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996), Pierce
v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v. Federbush,
5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150 N.J.Super. 185
(Ch.Div. 1977); Department of Health v. Roselle, 34 N.J. 331 (1961),
Commentary to R. 1:10-3, Current New Jersey Court Rules.
This issue
was recently visited by three appellate panels, who issued unpublished opinions
on March 27, 2000 in Weinstein v. Weinstein ("Weinstein I"),
on April 7, 2000 in Weinstein v. Weinstein ("Weinstein II") on
April 12, 2000 in Bachman v. Cohen ("Cohen"), and on June 7,
2000 in Williams & Brookins v. Tolbert ("Tolbert"). Copies of these opinions are enclosed.
In these
opinions, three appellate panels summarily reversed four trial court orders
incarcerating child support obligors in situations analogous to the case before
this Court. In Weinstein I, the
appellate division issued a short (two page) Order reversing the trial court on
the grounds that "the trial court failed to determined whether defendant
has the ability to pay all or a portion of the support arrears."
The
appellate division ruled:
An order
incarcerating a debtor-spouse in aid of litigant's rights which contains an
amount to be paid as a condition for release presupposes that the judgement
debtor has assets that have been secreted or otherwise placed beyond the reach
of execution. . . the purpose of such an order, and its legal justification, is
to induce compliance with a lawful 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 record
before us is devoid of any evidence that defendant has assets that can be used
to satisfy the release amount ordered by the court. . .
The Court
went on to instruct that the appropriate remedy under the facts presented would
be to order the obligor to obtain employment and require strict reporting
requirements, and, if an obligor failed to comply at that juncture, the court
could consider incarceration or referring the matter to the prosecutor for
proceedings pursuant to N.J.S.A. 2C:24-5 (Willful Nonsupport).
In Cohen,
the defendant had recently paid $20,476.44 in arrears while maintaining his
current obligation, but had failed to make an additional required payment in
the amount of $1,500 toward arrears.
While the appellate division "appreciate[d ] the frustration and
skepticism of the court and counsel for the [obligee ]", Judge Cuff held
that the record did not support Mr. Cohen's continued incarceration, and
specifically stated "defendant's continued incarceration after twelve (12)
days may suggest that he has exhausted that source of funds."
In the case
before this Court, the defendant has now been incarcerated for over eleven
days. Although defendant stated a
belief that he would be able to borrow funds from his family to secure his
release (T 3-22 to 3-23), he was apparently unable to do so. Moreover, the focus of the trial court
should have been on the ability of the obligor to tap his own resources, not
those of his family, to bring himself into compliance with the Court's order
and to secure his release. Far from the
Court finding that defendant had the ability to pay the $57,748.74 arrearage,
the trial Court referred defendant to the Social Security Administration and
suggested that disability funds (which obviously were not then available to
defendant) could be used to make payments toward defendant's debt.
Finally, it
should be noted that it was undisputed in the trial Court that the children
involved are 20 and 21 years old and not full-time students (4a at 11), but
that no application for emancipation had been brought. The Probation Department records indicate
that defendant has a child support obligation of $90.00 per week with an
additional $10.00 per week toward arrears. With no legitimate child support obligation
for his emancipated children, Mr. Cruz is incarcerated solely for his failure
to pay a debt. Whatever public policy
motivations may exist to support a decision to incarcerate a child support
obligor carry far less weight when, as here, the children are emancipated and
the only issue is one of repayment of a debt.
II.
THE FILING FEE SHOULD BE WAIVED.
It was
undisputed that defendant is unemployed and indigent. According to the certification credited by the trial Court,
defendant is ill enough to justify an evaluation of his mental state (T 4-3 to
4-10). No evidence to the contrary was
supplied to the trial court. The filing
fee for the instant appeal should be waived pursuant to R. 1:13-2 (a).
Conclusion
This Court
should summarily reverse Judge Cooper's February 27 Order and require the
immediate release of Mr. Cruz, conditioned on his cooperating with future
enforcement proceedings and pursuing any disability income that might become
available to him. This Court should
further order that defendant shall not be re-incarcerated absent a finding that
he has the present ability to pay or that he has failed to comply with his duty
to pursue disability income and/or employment.
Respectfully submitted,
David Perry Davis, Esq.
cc: Juan Cruz
Maria
Martinez
Ocean County
Probation Dept.,
Child
Support Enforcement Unit
Hon. JSC
DPD/jz
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