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
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.
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,
ARGUMENT Page
BY: Mr. Hussein 3
THE
COURT
Decision 12
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: Well, I'll --
MR. HUSSEIN: I am on general
assistance. I'm receiving $49 a month.
THE COURT: We can move you up to $26,000
to $5,000. He can be -- warrant for
your recall. He is to be released on a
cash payment of $5,000. If the money is posted, it's to be used to reduce. If it's not posted,
MR. Hussein is to be returned to court on
Tuesday, August 15th. Have a
seat.(Proceedings Concluded)
CERTIFICATION
I, Sherry M. Bachmann, the assigned
transcriber, do hereby certify the foregoing transcript of proceedings on tape
number August 11, 2006, index number from 1546 to 2313, is prepared in full
compliance with the current Transcript Format for Judicial, is prepared in full
compliance with the current Transcript Format for Judicial Proceedings and is a
true and accurate non-compressed transcript of the proceedings as recorded.
_______________________________ AOC
Number: 454
Sherry M. Bachmann
G&L Transcription of N.J. Date:
August 18, 2006
ATTORNEY
CERTIFICATION
David Perry
Davis, of full age, hereby certifies as follows
1. I am an attorney at law of the State of New
Jersey.
2. I received the within transcript
eletronically and reformatted it to WordPerfect. No modifications to the content were made.
3. I am filing this certification so that the
Court may accept the transcript as if it were an original. An original signature will be submitted when
received from the transcriber if requested by the Court or another party.
4. 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.
_____________________________
DATED: David Perry Davis,
Esq.
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 15, 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,
ARGUMENT Page
BY: Mr. Hussein
3
THE COURT
Decision 8
THE
COURT: MOEZ HUSSEIN,
FM-791-01. Child support for the
children, Fazar (phonetic) and Omar, the order is $91, plus $100 on
arrears. The arrears are approximately
$27,000. Mr. Hussein was in court on
Friday. I found at that time that he
was not indigent, that he has a right to have an attorney. He has been employed as a substitute math
teacher, obviously, not working for the summer, receives some type of
assistance for the summer. How much do you
have, Mr. Hussein?
MR.
HUSSEIN: I don't have anything,
Judge. I believe, Judge, the last time
I was here, you said that you will send me to Judge Sogluizzo next time because
she's the one who is aware of the case.
THE
COURT: Mr. Hussein, I think we've gone
through this in the past. You are an
unemployed accountant. You're an accountant,
right?
MR.
HUSSEIN: Yes.
THE
COURT: And how do you support yourself?
MR.
HUSSEIN: Again, sir, I am on public
assistance. I have been on public
assistance. I am unemployed. My income is $140.
THE
COURT: Get a job. Get a job.
Get a job.
MR.
HUSSEIN: I've been trying to get a job
for the past three years.
THE
COURT: My recollection is that you have
a -- you're a college graduate. You
have a masters degree.
MR.
HUSSEIN: I have two masters degrees,
sir.
THE
COURT: And you can't get a job?
MR.
HUSSEIN: And half way through my Ph.D
and I cannot get a job. I have 11
people working for me.
THE
COURT: But what -- you're getting a
Ph.D? You're going to school for Ph.D?
MR.
HUSSEIN: Yes.
THE
COURT: In what?
MR.
HUSSEIN: Corporate leadership. Corporate leadership.
THE
COURT: And how do you pay for the Ph.D?
MR.
HUSSEIN: I don't now. I'm here.
THE
COURT: Well, how did you pay the Ph.D
if you weren't working?
MR.
HUSSEIN: When I was working. Now, I'm not.
THE
COURT: Well, when was the last time you
worked?
MR.
HUSSEIN: May 26th.
THE
COURT: All right. You were a substitute school teacher. You're going to graduate school for Ph.D?
MR.
HUSSEIN: Sure.
THE
COURT: How much does that cost to get a
Ph.D? You have to pay by credit, right?
MR.
HUSSEIN: Yes. But it doesn't cost me anything.
I get loans.
THE
COURT: It doesn't cost you anything to
get a Ph.D?
MR.
HUSSEIN: No. I get loans.
THE
COURT: How are you going to pay off
these loans?
MR.
HUSSEIN: Well, once I get out of here,
I get a job and I pay.
THE
COURT: What is this Ph.D for?
MR.
HUSSEIN: Management.
THE
COURT: But you have an accountant
major, right? Are you a CPA?
MR.
HUSSEIN: No. I'm not. I'm an M.B.A.
THE
COURT: But you majored in accounting,
right, as I recall?
MR.
HUSSEIN: I have a B.S. in accounting.
THE
COURT: And what do --
MR.
HUSSEIN: I have an M.S. in --
THE
COURT: And what's your masters in?
MR.
HUSSEIN: Masters in accounting, and I
have an M.B.A. in management information systems, and my Ph.D will be in
leadership, corporate leadership.
THE
COURT: And when was the last time you
had like a real job, besides this substitute teacher job? How many years ago?
MR.
HUSSEIN: I think, as far as I remember,
I was an assistant chief financial officer in 2001.
THE
COURT: And somebody has given you a
loan and you haven't worked in five years?
MR.
HUSSEIN: Sure. That's what the government is for.
THE
COURT: And how old are you?
MR.
HUSSEIN: I'm 44.
THE
COURT: And how much do you owe on this
loan for your Ph.D? How much is it
going to cost you eventually for your Ph.D?
MR.
HUSSEIN: I don't know yet.
THE
COURT: Well, how much is a credit?
MR. HUSSEIN: It depends, but so far I owe about --
THE
COURT: What school do you go to? What school do you go to?
MR.
HUSSEIN: Columbia. So far, it's about $121,000.
THE
COURT: You go to Columbia University
graduate school. You don't know how
much a credit is?
MR.
HUSSEIN: So far, I owe about $121,000,
so it's --
THE
COURT: How much is a credit to get a
doctorate?
MR.
HUSSEIN: I don't know, sir. I don't know. I answered that question.
THE
COURT: Come on.
MR.
HUSSEIN: I don't know?
THE
COURT: You don't know?
MR.
HUSSEIN: I don't know.
THE COURT: How many credits do you have towards your doctorate?
MR. HUSSEIN: About 40.
THE COURT: How much have you paid a credit up to now? It's got to be minimally $500 a credit,
right?
MR. HUSSEIN: I honestly don't know exactly because I get loans and the loans
pay off these amounts, so I don't know the answer to that.
THE COURT: Well, you'd better try to get a loan for your child support
because you're not getting out of jail until you come up with some money.
MR. HUSSEIN: Well, Your Honor, as I told you before, I am unemployed. I am an indigent.
THE COURT: No. You work as a
substitute school teacher. You are
employed.
MR. HUSSEIN: No. I'm not. The last time I worked there was May 26th,
as I indicated to you last time.
THE COURT: And schools are out of session right now. Schools are out of session. All teachers don't work during the summer,
right?
MR. HUSSEIN: No, sir. You get -- if
they wanted me, they have to send out forms every July for substitutes
teachers, if they want them to come back in September to sign off and send it
back. I have not received one, so
that's an indication that they may not want me in September and that's why I am
on public assistance. I am receiving
$140 of income monthly. And if the Court
feels that I can -- any portion of this $140 and get out of debt to pay the
child support, I'll be more than happy to do so, sir. But that's my current income.
THE COURT: I'm still not satisfied that Mr. Hussein is indigent. I find his testimony that he has not worked
since 2001 somewhat incredible. He has
two masters degrees or a masters degree, an M.B.A., bachelors in accounting,
attends Columbia for his doctorate. I
just can't believe that he is indigent.
He is to be remanded to the Hudson County Jail in lieu of a $5,000
payment. If the money is paid, it's to
be used to reduce arrears. If the money
is not paid, Mr. Hussein is to return to court on Monday, August 21st. Do you want to make a phone call?
MR. HUSSEIN: No, sir.
THE COURT: Have a seat. Thank you.
CERTIFICATION
I, Sherry M. Bachmann, the assigned
transcriber, do hereby certify the foregoing transcript of proceedings on tape
number 461-06, index number from 0095 to 0404, is prepared in full compliance
with the current Transcript Format for Judicial Proceedings and is a true and
accurate non-compressed transcript of the proceedings as recorded.
_______________________________ AOC
Number: 454
Sherry M. Bachmann
G&L Transcription of N.J. Date:
August 18, 2006
ATTORNEY
CERTIFICATION
David Perry
Davis, of full age, hereby certifies as follows
1. I am an attorney at law of the State of New Jersey.
2. I
received the within transcript electronically and reformatted it to
WordPerfect. No modifications to the
content were made.
3. I am filing this certification so that the
Court may accept the transcript as if it were an original. An original signature will be submitted when
received from the transcriber if requested by the Court or another party.
4. 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.
______________________________
DATED: David Perry Davis,
Esq.
Counsel was retained for
this appeal by a family member (via a credit card). Appellate counsel is not counsel in the trial court.
Following this string of
reversals on emergent applications, the Administrative Office of the Courts
issued a completely revised manual for trial court judges on conducting ability
to pay hearings (Directive #2-04), available online at http://www.dpdlaw.com/notable.htm. Presumably as a result of this revision,
there have been no emergent applications (filed by this office) since that
time. Judge Bovino's conduct of the
ability to pay hearing at issue herein completely ignored the instructions
contained in the revised AOC directive.
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