SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

APPLICATION TO FILE APPEAL OR MOTION ON AN EMERGENT BASIS

TO: Hon. Anthony J. Parrillo, JAD DATE: 8/16/06

FROM: David Perry Davis, Esq. TELEPHONE: 609-737-2222

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 should 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: Yatou Khatkhat v. Moez Hussein

1. What is the vicinage of the matter? (i.e. what judge, in what county or what agency entered the decision?)

Hon. Salvatore Bovino, JSC

Hudson County

2. a) What is your name, address, phone number and fax number?

David Perry Davis, Esq.

112 West Franklin Ave

Pennington NJ 08534

609-737-2222 (voice)

609-737-2222 (fax)

b) Whom do you represent?

Defendant

3. What is your adversary's name, address, phone number and fax number?

Mary O'Brien, Esq.

Hudson County Legal Services Corporation

574 Summit Avenue

Jersey City NJ 07306-2797

Phone: (201) 792-6363

Fax: (201) 798-8780

(Served pursuant to R. 1:11-3, has not indicated that she will represent Ms. Khatkhat on emergent application).

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.

Yes - attached.

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 NOT FINAL, BUT RATHER INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.

No.

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. Stay is not sought; summary reversal is.

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?

Notice of appeal pending on unrelated issues. Will file an amended notice of appeal if leave to proceed on emergent basis is granted.

10. What is the essence of the order, judge or agency decision?

1. Defendant was incarcerated for child support arrears without a proper ability to pay hearing and without any evidence that he has the ability to pay the established release amount of Five Thousand Dollars ($5,000).

2. The trial court suspended defendant's parenting time contingent on a support payment being made.

3. Defendant was denied his right to counsel pursuant to the mandate of Pasqua v. Council, 186 N.J. 127 (2006) without sufficient evidence existing in the record to rebut his claim of indigence.

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?

Yes, pending appeal under A-4979-05T2.

No prior emergent application.

12. What is the nature of the emergency?

1. Defendant is being deprived of his liberty.

2. Defendant was denied his right to counsel.

3. Defendant is being improperly deprived of contact with his children by an erroneous linking of support compliance and parenting time.

13. What is the irreparable harm?

Unconstitutional or improper deprivation of liberty / incarceration constitutes irreparable harm.

14. What relief do you seek?

1. Release pending an ability to pay hearing and no re-incarceration unless a contemporaneous finding is made that defendant has the ability to pay any release amount set.

2. Summary reversal of provision of order linking child support payment to parenting time.

3. Appointment of counsel in future trial level proceedings wherein defendant faces a loss of liberty.

15. What citation is most important for the proposition that you are likely to prevail on appeal?

Appointment of counsel: Pasqua v. Council, 186 N.J. 127 (2006), Lake v. Speziale, 580 F Sup 1318 (D.Conn. 1984).

Ability to pay: 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), 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), Cruz v. Cruz, (App Div 03/01), Desiderio v. Desiderio, (3/03) (copy enclosed).

Basing parenting time order on considerations other than "best interests of the child" - Beck v. Beck, 86 N.J. 480 (1981), In Re Baby M, 109 N.J. 396 (1988).

16. Have you notified your adversary that you will be appealing?

Yes, verbally and 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 - should be available tomorrow afternoon.

However, as explained below, this Court should summarily reverse based on the text of the trial court's orders; its findings are inherently contradictory and erroneous on their face. Defendant should not have to spend another night (or, more probably, another three nights in light of the upcoming weekend) in jail awaiting the transcripts. Defendant has never failed to appear for court when ordered to appear.

If so, when will the transcripts be available?

See above

20. Please give me a brief summary of the facts of your case:

As to immediate release from jail

Defendant-appellant is in arrears on his child support obligation. He was placed on two week warrant status as a result of his failure to completely comply with the obligation. Specifically, he was ordered to pay $191 per week, consisting on $91 as current support (based on imputed income) and $100 toward arrears (again based on imputed income).

The obligation itself and the amount of the arrears payment are the subject of a separate appeal, filed by defendant pro se and currently pending.

Defendant was arrested on or about August 9 as a result of his underpayment. Specifically, defendant has paid an average of $20 per week (1-800-621-KIDS, CS# 1267 2029A).

His arrest is not challenged herein.

On August 11, 2006, defendant attended an ability to pay hearing before Hon. Salvatore Bovino, JSC.

Defendant asserted that he had no ability to pay a release amount; that he was broke and indigent.

Defendant asserted that he was indigent and therefore entitled to appointed counsel. The trial court denied the request without any evidence in the record to rebut his claim of indigence and established a $5,000 release amount.

In its Order (attached), the trial court found:

Defendant is a substitute teacher for Belvedere High School - currently unemployed and receiving public assistance. Defendant remanded for $5,000.00 Defendant not indigent.

A release amount of $5,000 was established. No evidence was produced that defendant has access to assets that would permit him to pay this release amount.

It is respectfully requested that this court consider summarily reversing based on the above text. A finding that an obligor is "unemployed and receiving public assistance" cannot be reconciled with an unexplained subsequent statement that "Defendant [is ] not indigent."

A second ability to pay hearing was conducted on August 15. The $5,000 was maintained, again, without any finding that defendant has access to sufficient funds to pay this release amount. In its findings on this order, the court found:

Defendant not indigent - Defendant has a Masters in accounting - a PhD in management. Defendant attends Columbia University. Defendant remanded for $5,000 if not paid produce 8/21/06.

A finding that an obligor has an education and is a student cannot substitute for a finding, based on sufficient credible evidence in the record, that an obligor has the ability to pay.

The issue is not "good faith" or "bad faith." The matter was not a criminal trial for "wilful nonsupport" nor "contempt of court." As the Supreme Court affirmed in May, the sole issue at an ability to pay hearing is whether defendant has the current ability to pay any release amount set and therefore has the "keys to the jail" in his hands. In the absence of such findings (as demonstrated in the text of the court's order), this court should summarily reverse.

As to appointment of counsel^[1]

When a defendant asserts indigence, she or he is entitled to appointed counsel in the absence of evidence he or she is not in fact indigent. Findings regarding education, employment during the school year, or student status cannot be used to justify a denial of a request for counsel when a litigant is facing the second most severe action a court can take (loss of liberty) against any individual.

As to parenting time

Parenting time and custody decisions must be based on one consideration only: the best interests of the child. Judge Bovino erred in linking support compliance with parenting time.

Cc: Mary O'Brien, Esq. / Legal Services Corporation (201) 798-8780)

6/99

609-943-5236

The Law Office of

David Perry Davis

112 West Franklin Ave

Pennington NJ 08534

(609) 737‑2222

(609) 737‑3222 (fax)

DPD@dpdlaw.com

───────────────────────────────────────

August 18, 2006

Hon. Anthony J. Parrillo, JAD

Superior Court of New Jersey ─ Appellate Division

Hughes Justice Complex

25 Market Street

Trenton, NJ 08560

Via Fax: 609-943-5236

Re: Khatkhat v. Hussein

Docket No. FM-09-791-01

Appellate Docket No. A-4979-05T2.

Dear Judge Parrillo:

Please accept this letter brief in lieu of a more formal brief in support of defendant's application to be immediately released from the Hudson County Jail pending a proper ability to pay hearing, prohibiting his re-incarceration unless and until such time as the trial court finds, based on substantial and credible evidence in the record, that defendant has the present ability to pay any release amount set.

Defendant additionally asks this court to summarily reverse and remand for the entry of an order compelling the trial court to appoint counsel for defendant for any future trial level enforcement proceedings wherein his liberty is at stake.

Finally, defendant asks the court for summary reversal of the provision of the court's order linking child support compliance with parenting time.

Factual Statement

The record establishes that defendant was arrested on or about August 9 as a result of his underpayment of child support. Of a total amount ordered of $61,912, defendant has paid $33,750. His current arrears are $27,381. (1T 8-20 to 8-23).

His current obligation is $191 per week, consisting of $91 in child support and $100 toward arrears. During 2006, defendant paid an average of $20 per week.

At the purported ability to pay hearing on August 11, defendant testified that he is indigent, receiving state assistance, and searching for employment (1T 3-8 to 3-9, Da 9, 2T 3-17 to 3-18, Da 21). Defendant testified that he was unable to pay any release amount.

His testimony was essentially the same at the second purported ability to pay hearing on August 15 (2T, Da 19-26).

No evidence was presented at either hearing to rebut any of defendant's claims. Rather, the trial court focused on defendant's good faith in pursuing employment and, without providing any analysis, established a completely arbitrary release amount of Five Thousand Dollars ($5,000).

Defendant has now been incarcerated for 10 days and remains unable to pay the release amount.

Legal Argument

I. DEFENDANT MUST BE IMMEDIATELY RELEASED AS HE WAS NOT AFFORDED A MEANINGFUL ABILITY TO PAY HEARING AND NO EVIDENCE EXISTS THAT HE HAS THE ABILITY TO PAY THE ARREARS AMOUNT SET BY JUDGE BOVINO ON AUGUST 11 AND AUGUST 15.

At the summary hearing in this matter, there was no meaningful inquiry into whether defendant had the present ability to pay a significant portion of the 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 has been reviewed by several appellate panels, who issued unpublished opinions in Weinstein v. Weinstein ("Weinstein I"), Weinstein v. Weinstein ("Weinstein II"), Bachman v. Cohen, Cruz v. Cruz, and Williams & Brookins v. Tolbert ("Tolbert"). Copies of these opinions are enclosed following defendant's appendix.^[2]

In these opinions, three appellate panels summarily reversed trial court orders incarcerating child support obligors in situations identical 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", ruling:

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. . . (Emphasis added).

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 refer 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 approximately the same amount of time.

While the court may "appreciate the frustration and skepticism of the court" as to whether defendant has proceeded in good faith as to his employment search efforts, a finding of bad faith in attempts to secure employment cannot substitute for a searching inquiry as to the ability of an incarcerated obligor to pay an established release amount. In the absence of evidence that defendant "has the keys to the jail in her/his hands", the ordering incarcerating him should be summarily reversed.

II. DEFENDANT MUST BE APPOINTED COUNSEL FOR FUTURE TRIAL COURT PROCEEDINGS WHERE HIS LIBERTY IS AT STAKE.

Defendant asserted that he is indigent, unable to pay a $5,000 release amount and unable to afford counsel.

Four months ago, the Supreme Court of New Jersey addressed this precise issue and unanimously affirmed that the due process clauses of the United States and New Jersey constitutions mandated that attorneys must be appointed in any proceeding (civil, criminal, administrative, municipal, etc) where a defendant's physical liberty is at stake. The Supreme Court affirmed that it is not the nature of the proceeding, but the potential effect on a litigant that triggers the right to counsel.

A cursory finding that "I find you're not indigent" without any evidence in the record to rebut defendant's claim of poverty makes a mockery of the Supreme Court's recent, on-point ruling and the constitutional protections it embodies.

In the absence of evidence in the record that defendant is defrauding the court in his assertion of indigence, counsel must be appointed to represent defendant if his liberty is at stake.

III. THE TRIAL COURT'S RULING THAT DEFENDANT'S PARENTING TIME IS SUSPENDED UNLESS HE COMPLIES WITH FINANCIAL PROVISIONS OF A SUPPORT ORDER SHOULD BE SUMMARILY REVERSED.

The trial court ruled unless defendant makes payment toward his arrears, the children do not have to be brought for parenting time (Da 6).

Decisions relating to contact with children, parenting time and custody must be based on the best interests of the child. Linking support compliance with parenting time - especially when, as here, defendant asserts that he is indigent and unable to comply, is offensive to this basic notion. Beck v. Beck, 86 N.J. 480 (1981), In Re Baby M, 109 N.J. 396 (1988).

Conclusion

This Court should summarily reverse Judge Bovino's August 11 and August 15 Orders and require the immediate release of defendant, conditioned on his continued cooperation with future enforcement proceedings. This Court should further order that defendant shall not be re-incarcerated absent a finding based on evidence in the record that he has the present ability to pay any release amount set.

Pursuant to the mandate of Pasqua v. Council, defendant must have counsel appointed for him in any future proceeding wherein his liberty is at stake unless there is evidence in the record that his claim of indigence is fraudulent.

Finally, the provision linking support compliance to parenting time should be summarily reversed.

Respectfully submitted,

David Perry Davis, Esq.

cc: Moez Hussein

Mary O'Brien, Esq.

DPD/jz

SUPERIOR COURT OF NEW JERSEY

CHANCERY DIVISION, FAMILY PART

HUDSON COUNTY

DOCKET NO. FM-09-0791-01

APP. DIV. NO.__________________

YATOU KHATKHAT, )

)

Plaintiff, ) TRANSCRIPT

) of

vs. ) HEARING

)

MOEZ HUSSEIN, )

)

Defendant. )

Place: Hudson County Court

Administration Bldg.

595 Newark Avenue

Jersey City, NJ 07306

Date: August 11, 2006

BEFORE:

HONORABLE SALVATORE BOVINO, J.S.C.

TRANSCRIPT ORDERED BY:

DAVID PERRY DAVIS, ESQ.

APPEARANCES:

MOEZ HUSSEIN, Defendant, Pro Se

Sherry M. Bachmann

G&L TRANSCRIPTION OF N.J.

40 Evans Place

Pompton Plains, NJ 07444

Audio Recorded

Recording Operator,

MR. HUSSEIN: -- Moez Hussein.

THE COURT: Where do you live, Mr. Hussein?

MR. HUSSEIN: 74 South Lincoln Avenue, Washington, New Jersey 07882.

THE COURT: Who do you live with?

MR. HUSSEIN: Myself, sir.

THE COURT: And do you work?

MR. HUSSEIN: Currently unemployed. Currently unemployed. I am the recipient of the State general assistance.

THE COURT: For how long have you been unemployed?

MR. HUSSEIN: For about three years now.

THE COURT: How do you support yourself?

MR. HUSSEIN: General assistance. I am on a State general assistance.

THE COURT: What does that mean?

MR. HUSSEIN: It's a form of assistance by the State that pays your rent, pays for your utilities.

THE COURT: And why it is you're unemployed?

MR. HUSSEIN: Because I can't find work.

THE COURT: What type of work do you do? What type of work are you looking for?

MR. HUSSEIN: I'm an accountant.

THE COURT: What type of work are you looking for?

MR. HUSSEIN: I've looked for all types of work.

THE COURT: Well, what about taxi driver, gas station pumper, A&P, Shop-Rite, Home Depot, construction?

MR. HUSSEIN: Your Honor, if I may address the Court for a couple of minutes.

THE COURT: Yes.

MR. HUSSEIN: This case has a very long history. It's a seven-year-old case. We've just had an ability to pay here before Judge Sogluizzo back on June 7th. Judge Sogluizzo entered an order asking me to pay $211 a week, knowing that I was at that time substitute teacher at Belvidere High School and I was only making about $330 a week.

THE COURT: Well, I'm not here to --

MR. HUSSEIN: I understand.

THE COURT: I am not the Appellate Division for Judge Sogluizzo.

MR. HUSSEIN: No, Your Honor. But I just wanted Your Honor to --

THE COURT: The order I have is --

MR. HUSSEIN: I'm sorry?

THE COURT: -- $91 a week.

MR. HUSSEIN: Plus, $100 in arrears, plus $20 --

THE COURT: Plus $100 on arrears. Okay.

MR. HUSSEIN: Plus, $20 in transportation. So that's $200.

THE COURT: I am not here to overrule what Judge Sogluizzo did.

MR. HUSSEIN: No. I'm not asking. The case is pending appeal. It's before the Appellate Court and --

THE COURT: Unless you get a stay, it doesn't help you any.

MR. HUSSEIN: It is before the Appellate Court and, hopefully, we'll get a stay soon. But, however, I just want to ask again for the release for me today pending an ability to pay hearing and an appointment of Counsel by this Court.

THE COURT: What else do you want to tell me?

MR. HUSSEIN: There's not much more, sir.

THE COURT: Well, this is the matter of YATOU KHATKHAT V. MOEZ HUSSEIN, FM-09-791-01. Child support for the children, Fazar(phonetic), Omar, 4/27/97, 9/13/98. The order I have is dated July 12, 2006, $91 plus $100. A warrant was issued, failure to comply with the court order, more than two missed payments. Warrant calls for a cash payment of approximately $27,000. It looks like Judge Sogluizzo back in May had an ability to pay hearing. Is that what you're talking about?

MR. HUSSEIN: Yes, Your Honor.

THE COURT: And, apparently, found that you had the ability to make child support payments of $91 a week. Why is it that you can't find some other type of work besides being an accountant?

MR.HUSSEIN: No, Your Honor. I am working, but I am a teacher and, in the summer, we have a summer session, so I cannot work.

THE COURT: I thought you said you were on some type of State assistance?

MR. HUSSEIN: Currently, yes. Because I'm not --

THE COURT: Just for the summer?

MR. HUSSEIN: Yes.

THE COURT: Oh, you were working up until June?

MR. HUSSEIN: Up to the end of May, actually.

THE COURT: What kind of teacher are you?

MR. HUSSEIN: I'm a math teacher. Math teacher.

THE COURT: Where do you teach?

MR. HUSSEIN: Belvidere High School.

THE COURT: And you stopped working in May?

MR. HUSSEIN: Yes.

THE COURT: Why is that?

MR. HUSSEIN: It's a substitute teacher position, so you're not required to do --

THE COURT: Teachers don't take off in June?

MR. HUSSEIN: They take off -- I think the last day was June 14th, but the last day for me was May 28th -- 26th, actually.

THE COURT: High school got out on June 14th?

MR. HUSSEIN: Yes.

THE COURT: Well, okay. So you are employed, and you're going to be employed soon?

MR. HUSSEIN: I hope we are because that's a position that's not permanent. It is --

THE COURT: How much do you make as a sub?

MR. HUSSEIN: It depends how many days you work per month. But, basically, I would say --

THE COURT: How many days a week do you work on average?

MR. HUSSEIN: They have to call you in not until --

THE COURT: On average?

MR. HUSSEIN: Sometimes, I used to work --

THE COURT: How much did you earn from January to May?

MR. HUSSEIN: I'd say, two to three days, Your Honor. Two to three days a week.

THE COURT: How much did you make from January to May?

MR. HUSSEIN: From January to May?

THE COURT: Approximately?

MR. HUSSEIN: I made about $1,600.

THE COURT: In five months?

MR. HUSSEIN: Yes. Because they don't actually call you every single day.

THE COURT: Then why can't you get some other type of employment, more traditional?

MR. HUSSEIN: I am at the employment office every single day. I have about 13 people working with me.

THE COURT: That doesn't mean anything. I can go to the employment office every single day and say, you know, I don't want this job, I don't want that job. You know, --

MR. HUSSEIN: No. I never refuse a job. I've sent resumes to millions of people and I get responses and I've showed Judge Sogluizzo how much the pile that I had here in court the last time I was here, and all the responses I've received from employers and she just said, well, I can see.

THE COURT: Where have you worked -- where have you worked in the past three years?

MR. HUSSEIN: I haven't. I only worked in the school.

THE COURT: When did you start working in the school?

MR. HUSSEIN: It was December of 2005, the end of December, 2005.

THE COURT: Then you didn't work the two years before that at all?

MR. HUSSEIN: That's correct, at all.

THE COURT: Doing anything?

MR. HUSSEIN: Anything.

THE COURT: Why is that?

MR.HUSSEIN: Because there wasn't anything. If there was, I would have taken it.

THE COURT: If you want to put food on the table, you can find a job, waiter, pumping gas, driving a taxi.

MR. HUSSEIN: I have tried, but just because Judge Sogluizzo prior to that in July of 2003, she incarcerated me while I was working and I lost my job and, ever since then, I've been unable to get a job and that's why this case is before the Appellate Court because there's so much to it, not just a father who doesn't want to pay his child support.

THE COURT: Well, what about probation? What's your position?

PROBATION OFFICER: The arrears, Judge, are $27,381, of which $25,716 is due the plaintiff, $1,483 is due Hudson County Welfare. The last payment received was July 24th for $20. The total to date charges are $61,912. Total to date payments,$33,750.

THE COURT: What about the year-to-date?

PROBATION OFFICER: Year-to-date charges, $3,953. Year-to-date payments, $351.

THE COURT: All right. So you've been working since 2005.

MR. HUSSEIN: Right. Actually, December.

THE COURT: And all of 2006, you've paid $351?

MR. HUSSEIN: Yes, Your Honor. Because as I explained to the Court, I didn't work every day. I have to wait until I'm called.

THE COURT: You have to do something. I mean, you know, you have to have a career change, whatever it might be.

MR. HUSSEIN: Actually, I was an accountant and the career change that I had is becoming a teacher because I couldn't find work in accounting.

THE COURT: Well, it's not working, so you have to have another career changes. You know, --

MR. HUSSEIN: If Your Honor can find me any other skill that I could learn, I would be more than glad to learn.

THE COURT: You need some money to get out of jail. How much can you put up?

MR. HUSSEIN: I don't have any money, Your Honor, and I would request an ability to pay hearing --

THE COURT: How much does a sub get paid a day?

MR. HUSSEIN: $70 or $80 a day.

THE COURT: And who do you live with?

MR. HUSSEIN: Myself.

THE COURT: And how do you get back and forth from home to work?

MR. HUSSEIN: There's a bus. It's only about seven minutes.

THE COURT: Any contact from Mrs. Khatkhat?

PROBATION OFFICER: No, Judge.

THE COURT: How much can you put up, bottom line?

MR. HUSSEIN: I don't have anything, Your Honor. That's why I'm asking for an ability to pay hearing.

THE COURT: We're not communicating. How much can you put up?

MR. HUSSEIN: Zero.

THE COURT: All right. You're at zero. I'm at $26,000. So there's a vast discrepancy.

MR. HUSSEIN: That's why, Your Honor, I'm asking for an appointed Counsel and ability to pay hearing.

THE COURT: There's no basis to appoint an attorney for you. You have the right to file an appeal. I'm satisfied that Mr. Hussein is not indigent. He has been employed as a substituteschool teacher earning, when he works, approximately $80 a day. I can't understand why he as an accountant can't find some type of more traditional, permanent type of employment, whether it's an accountant, computers, bookkeeper. Last chance, how much can you put up?

MR. HUSSEIN: Your Honor, as I said --

THE COURT: You're still at zero.

MR. HUSSEIN: If I have it, I would give you right away. I don't have it.

THE COURT: