Notable Cases & Published Caselaw

Anne Pasqua, et al v. Hon. Gerald J. Council, et al
186 N.J. 127 (2006) (March 2006)
A-6875-02T3 (Superior Court, Appellate Division) (September 2005)
MER-L-406-03 (Superior Court, Law Division, 2003) (April 2003)
316 f.3d 412 (3d Cir. 2003)  (United States Court of Appeals for the Third Circuit, 2003) (January 2003)
Case No. 00CV-2418 (District Court, 2000)  (October 2000)
       Pasqua v. Council successfully challenged New Jersey's unconstitutional practice of failing to appoint attorneys for indigent child support obligors at enforcement hearings where they face incarceration.  In Lassiter v. Department of Social Services, 452 U.S. 18 (1981), the United States Supreme Court held that "an indigent litigant has a right to appointed counsel ... when, if he loses, he may be deprived of his physical liberty."  The right to appointed counsel when a (civil or criminal) litigant's liberty is at stake was also established by the Supreme Court of New Jersey in Perlmutter v. DeRowe, 58 N.J. 5 (1971), by the New Jersey Appellate Division in In the Matter of the Civil Commitment of D.L., 351 N.J. Super. 77 (App.Div. 2002), and via New Jersey Court Rule 5:3-4 .  Until April 24, 2003, New Jersey was one of approximately a half dozen states that incarcerated unrepresented, indigent litigants at enforcement hearings without providing counsel.  The AOC issued Directive #02-04 thoroughly discussing when warrants should (and should not) be issued and the correct way to conduct an ability to pay hearing so as to do all that's possible to ensure that only those who are willfully refusing to pay are "coercively incarcerated." 
       As a result of this suit, trial courts are to diligently inquire into the indigent status of anyone facing incarceration applying the same standard used when a defendant requests a public defender in a criminal matter.  As no pool of attorneys exists to represent indigent Family Court litigants (pending further legislative action), incarceration is not available as an option at ability to pay hearings.

Oral argument Supreme Court of New Jersey (right click and Save As) (Oct 2005)
Brief of Amicus Curiae Legal Services of New Jersey (Oct 2005)
Defendants' opposition to Plaintiff's petition for certification NJ Supreme Court (Apr 2005)
Petition for certification NJ Supreme Court (Oct 2004)
Appellate Division Decision (reversal: avoids the merits) (Sep 2004)
Plaintiff / respondent / cross-appellant's Brief (Apr 2004)
Defendants' Appellate Brief-(Dec 2003)
(view online) (download tif file)
Appellate stay denial, Judge Feinberg's Sep 19 memo, AOC Directive (Sep 2003)
Opinion (WordPerfect) (Apr 2003)
Plaintiffs' supplemental Brief (Apr 2003)
Defendants' supplemental Brief (Apr 2003)
Transcript of Oral Argument (Mar 2003)
Reply brief (Mar 2003)
Defendants' Brief in Opposition (Mar 2003)
Brief in support of order to show cause (Feb 2003)
Order to show cause (Feb 2003)
Complaint (State Court) (Feb 2003)

Federal Court pleadings and court decisions (May 2000-January 2003)

Selected Press Coverage

MCBSS o/b/o Ricks v. Revel Fowler FD-11-1012-07

Revel Fowler v. Cassandra Ricks FD-11-1106-07

Issue: Under these circumstances, does the Welfare Cap / Child Exclusion / Assignment of Child Support violate the “taking clause” of the Fifth Amendment to the United States Constitution and Article 1, paragraph 20 of the New Jersey Constitution?

Revel Fowler, father of Crystal Fowler, objected to paying child support through probation as the Mercer County Board of Social Services would seize all but $50 of what was paid. Because his daughter was born after Crystal’s mother began receiving public assistance, Crystal would receive no benefit from the support he paid (which would be used, in effect, to pay for benefits Crystal’s mother received for her other child).

The opposition says, in a nutshell, that the State has wide discretion over how it will administer TANF / welfare and how it allocates child support funds when welfare is involved. They point to several US & NJ Supreme Court cases. But, even if (arguendo) the MCBSS is correct (a point I do not concede) all those cases were brought by or on behalf of the child or the custodial parent. I represent the non-custodial parent. He has a right for the money he pays for his daughter to be used for his daughter, not Ms. Ricks' prior children nor her "debt" to MCBSS.

Supporting brief on behalf of Diamond Fowler (child)  (Lawrence Lustberg, Esq. Melanca Clerk, Esq.) (6/07)

Supporting brief on behalf of Cassandra Ricks (mom)  (Leslie Chappo, Esq. Mercer Legal Services (pending)

Brief in opposition (MCBSS) (Thomas W. Sumners, Esq) (6/07)

Letter Brief on behalf of Revel Fowler (David Perry Davis, Esq.) (7/07)
 

Jeff Golden, et al v. Hon. Richard Codey, et. al  MER-L-1870-05
         This suit sought to block the appointment of Marianne Espinosa from taking the oath of office as a Judge of the Superior Court as a result of the Senate Judiciary Committee's violation of Rule 12:b(3).  The rule mandates that the public receive at least "five State working days notice" of a nomination hearing.  In order to avoid a controversial hearing, the Judiciary Committee (and, specifically, Senator John H. Adler) provided less than 48 hours notice (posting a notice of the judiciary website on Saturday at 4:00 for a Monday morning hearing).  The suit asserted that plaintiffs' procedural due process rights and the New Jersey Open Public Meetings Act were thus violated.  Although the court disagreed, the Senate action in sneaking this confirmation through without hearing from the citizenry was a despicable violation of the public trust and showed an arrogant disregard for the public.  As the court stated, "the ultimate redress is at the ballot box." 

Order Dismissing Complaint: TIF  (July 2005)
Plaintiffs' Reply to Defendant's motion to dismiss: HTML (July 2005)
Defendant's answer / Brief in support of motion to dismiss: TIF format (July 2005)
Complaint, Brief, Order to Show cause: HTML (July 2005)
Complaint - TIF format (July 2005)
Letter Brief in Support of OSC TIF format (July 2005)
Certifications in Support of Order to Show Cause (Exh A).pdf format (July 2005)

Star Ledger Coverage: (July 17 2005)

Leonard, et al v. Blackburn, et al, MER-L-3761-01
         This state level class action civil rights suit addresses the arrest and jailing of defaulted child support obligors for weeks - sometimes even months - at a time without review of their incarcerations, and the ongoing inadequacy of the evidence adduced at such hearings that the jailed obligor has the current ability to pay any release amount set.  In the worst case, a completely indigent obligor spent 93 days in jail before receiving any type of hearing at all, and the majority of plaintiffs had release amounts set without any evidence whatsoever that they had the ability to pay the thousands of dollars required for their release.
        On January 22, 2002, Hon. Linda Feinberg, A.J.S.C. (Mercer) issued a ruling denying plaintiffs' application for class certification and declined to address the issue of the adequacy of findings made at so-called "Ability to Pay" hearings.  However, the court did address the issue of obligors being held for inordinate amounts of time without being reviewed (at least as to the named defendants).  From now on, anyone arrested for defaulting on a child support obligation (or failing to appear for an enforcement hearing) must have a hearing within 72 hours and must thereafter be reviewed every two weeks.  
            On March 25, 2002, the trial Court denied plaintiffs' application for counsel fees and costs, finding that the above order did not constitute "prevailing" for purposes of a fee award.  Although rejecting this patently ridiculous finding, the Appellate Division affirmed based on a remote Federal Statute that had not been cited by the defendants in the trial court, not asserted by the trial court on its own, and not argued by defendants in the Appellate Division.  Good old "Jersey Justice" on the counsel fee issue, but the important issue (the timing of the hearings) was addressed.

Reply Brief: December 22, 2002
Appellate Brief: November 20, 2002
Supplemental brief: January 16, 2002
Transcript of oral argument: January 11, 2002
Transcripts of court appearances of plaintiffs (October & November 2001
Reply brief (January 9, 2002)
Order to Show Cause & Supporting brief (November 12, 2001)
Complaint (Class Action / Civil Rights) (November 12, 2001)
All the above files in one MS Word document

Trenton Times Coverage (January 12, 2002)
New Jersey Law Journal Coverage (January 28, 2002)

W.M., K.N., et al v. Hon. Philip Carchman, et al (Law Div. 7/05)
        Separation of Church and State / First Amendment:  Threatened suit over the violation of citizens First Amendment rights by compelling them to attend Alcoholic Anonymous / Narcotics Anonymous meetings.  The State conceded the point and changed the system prior to suit being filed.

Correspondence / Letter Brief to Attorney General's Office threatening suit (April 2005)
New Jersey Law Journal Story - jpg file (July 2005)
New Jersey Law Journal Story - tif file (July 2005)

Superior Court of New Jersey : Appellate Division

Miller v. Miller, (App. Div. 2007)  Sat Below: Hon. Roger Daley, J.S.C. (Middlesex County)
The appellate court notes that, while the parties’ Property Settlement Agreement is not clear and unambiguous on its face with respect to the defendant-father’s obligation to pay his son’s college costs, it nevertheless disagrees with the trial judge’s conclusion that, because the PSA explicitly spells out, in one paragraph dealing with summer camp, that “tuition” includes room and board, the unmodified word “tuition” in another paragraph must be read to have the same meaning for purposes of defendant’s college cost obligation. The order requiring defendant to pay tuition, room and board is reversed and the matter remanded for further proceedings.

Order following remand (Prevailed)
Appellate Decision (PDF)
Appellate Brief  (Unopposed – no reply / Web Page format)

Khatkhat v. Hussein, (App.Div. August 18, 2006)
Sat Below: Hon. Salvatore Bovino, J.S.C. (Hudson County)
In this emergent appeal, the trial court's Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court.  "A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply."  The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court's order.

Order on Emergent Application (PDF)
Application for emergent relief (web page)
Application for emergent relief (PDF)

Tomlin v. Tomlin  (App Div 2005)
Sat Below: Hon. Allison Accurso, J.S.C. ( Mercer County ) 
As has happened occasionally in the past, the trial Court simply would not issue an order.  In this case, it was on an unopposed motion to freeze proceeds from an inheritance and sale of real estate.  As the trial court dallied and ignored letter requests to decide the motion and issue an order before the funds disappeared, the matter became emergent as moving vans were outside the house.  The appellate division was asked to view the lack of an order as a de facto denial.  Within 24 hours of receipt of the application, the appellate division apparently instructed (behind the scenes) the trial court to issue the order.  The is a very simple, one page denial of an emergent application but could be very useful to anyone in the same circumstances in the future.  

Appellate Decision
Application for emergent relief

Harris v. Harris  (App Div 2005)
Sat Below: Hon. Audrey Payton Blackburn, J.S.C. (Mercer County) 
The trial Court erred by dismissing plaintiff's domestic violence complaint and Temporary Restraining Order as a result of an error committed by the Municipal Court in the filing of the complaint.  On an emergent application, the Appellate Division reversed and reinstated the complaint and TRO.

Appellate Decision
Appellant's application for emergent relief (complete) with letter brief

Bayes v. Wallace A-5176-03T5 (App Div 2005)
Sat Below: Hon. Thomas P. Kelly, J.S.C. (Mercer County) 
The trial Court erred by entering a restraining order after (1) denying defendant's request for an adjournment to retain counsel when plaintiff raised allegations at trial that went beyond those contained in her complaint (2) by relying on allegations that were previously adjudicated in defendant's favor (3) by failing to permit defendant to cross examine plaintiff or her witness and (4) by failing to inform defendant of the serious nature and repercussions of a Domestic Violence restraining order..

Appellate Decision
Appellant's brief
Transcript of proceedings below

State v. Harris, A-6485-01T3 (App.Div. 2004)
Sat Below: Hon. Laura M. LeWinn, J.S.C. ( Mercer County ) 
The trial Court erred in convicting defendant of violating the parties' mutual Domestic Violence restraining orders where there was no evidence that defendant's outburst at his former wife rose to the level of quasi-criminal harassment.

Appellate Decision
Appellant's brief

Owens v. Owens, A-6005-00T2 (App.Div. 2003)
Sat Below: Hon. Roger W. Daley, J.S.C. (Middlesex County)
(Appearing for respondent) The trial court did not abuse its discretion in awarding $425.00 per week in permanent alimony and $127.00 per week in child support in light of the long-term (17 year) marriage, plaintiff's serious disabilities, and defendant's earnings history in excess of $70,000 per year.  Appellant's claim that the judgment impoverishes defendant is frivolous as it does not take into account the tax effects of an alimony award.

Respondents' brief

Goldberg v. Goldberg, A-003205-00T3 (App.Div. 2002)
Sat Below: Hon. Audrey P. Blackburn, J.S.C. ( Mercer County ) 
The trial court  erred in failing to compel custodial parent to repay child support received after the emancipation of the "child." This is a two page reversal; I have found it helpful to include a copy of this decision with all applications filed to have post-emancipation child support returned to the payor.  Without supplying this law, many judges will erroneously terminate child support only to the filing date of the motion - this is within the Court's discretion if support is reduced or terminated based on a change in circumstances.  As this decision affirms, it is never permissible when support is terminated as a result of emancipation - all support paid since emancipation must be refunded.

Appellate Decision (Tiff)
Appellate Decision (Page 1, .bmp)
Appellate Decision (Page 2, .bmp)
Appellate brief

Sharp v. Sharp, 336 N.J.Super. 492 (App. Div. 2001)
Sat below: Hon. Gerald Council, J.S.C. (Mercer County)
In the first published appellate decision in New Jersey to address the intricacies of interstate child support jurisdiction under the Uniform Interstate Family Support Act (UIFSA), the appellate division reversed a trial court finding of in personam jurisdiction over a California resident and clarified procedural aspects of motions for reconsideration.

Appellate brief
Reply brief

Cruz v. Cruz, (App.Div. March 19, 2001)
Sat Below: Hon. Rosalie B. Cooper, J.S.C. (Ocean County)
In this emergent appeal, the trial court's Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court.  "A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply."  The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court's order.

Required documentation for emergent appeal (download, WordPerfect format)
Required documentation for emergent appeal 

W.M. v. T.M., A-4789-99T1 (App.Div. 2000)
Sat below: Hon. Alan J. Pogarsky, J.S.C. ( Mercer County )
The trial court erred by resolving the material fact question of whether appellant had abused his daughter without conducting a plenary hearing.  In light of the allegations made and the inherent difficulty of disproving same, appellant should have been granted access to the files of the Division of Youth and Family Services and the Mercer County Prosecutor's Office. 

Appellate brief - web page

Appellate brief - WordPerfect format

Weinstein v. Weinstein (App.Div. March 27, 2000)
Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County)
In this emergent appeal, the trial court's Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court.  The appellant was to be released immediately and the matter was remanded for the trial court to conduct an ability to pay hearing.

Appellate Decision
Emergent appellate brief

Weinstein v. Weinstein (App.Div. April 7, 2000)
Sat Below: Hon. Louis Locascio, J.S.C. (Monmouth County)
After the initial remand, a second trial court order incarcerating defendant was reversed and appellant ordered released immediately.  Although the findings of the trial court as to appellant's ability to earn were affirmed, the remedy chosen (incarceration until payment of $28,163.10 towards arrears) was erroneous as the record was devoid of evidence that defendant had the ability to pay the release amount ordered by the Court.  "We disagree only with the remedy chosen by the judge.  An order incarcerating a debtor-spouse ... presupposes that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution.  R. 1:10-3."  The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court's order.

Appellate Decision
Emergent appellate brief

Bachman v. Cohen (App.Div.  April 12, 2000)
Sat Below: Hon. Thomas W. Cavanaugh, Jr., J.S.C. (Monmouth County)
In this emergent appeal, the trial court's Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court.  A finding that an obligor has not established changed circumstances warranting modification of a support order is not synonymous with, and cannot substitute for, a finding based on substantial, credible evidence that the obligor has the ability to comply with the order. "The purpose of an order incarcerating a judgment debtor is to induce compliance with the order.  In such cases, the incarcerated party has the key to freedom in his/her hands because the debtor-spouse has the ability to comply with the order as a condition for release."  The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court's order.

Emergent appellate brief

MCBSS o/b/o Brookins & Williams v. Tolbert, (App.Div.  June 7, 2000)
Sat below: Hon. Gerald Council, J.S.C. (Mercer County)
In this emergent appeal, the trial court's Order incarcerating an indigent child support obligor was reversed; there was no evidence that defendant had the ability to pay the release amount ordered by the Court.  The incarceration of defendant in the absence of any showing that he could pay the $10,000 purge figure set by the Court was "manifest error.  A litigant may not be incarcerated for failure to pay support in accordance with the court order, except upon a showing of an ability to comply."  The Appellate Division ordered the immediate release of defendant and prohibited his re-incarceration in the absence of evidence that he had the ability to comply with the court's order.

Emergent appellate brief
Appellate Decision

Margrabia v. Margrabia, A-1179-97T1 (App.Div.), Cert denied 161 N.J. 250(1999)
Sat Below: Hon. John Tomasello, J.S.C.  ( Gloucester County )
The trial court erred in its determination that it could award "equitable credits" after finding that the parties' prenuptial agreement was valid and enforceable and by increasing a compensatory damages award based on considerations of the defendant's assets.  Successfully opposed adversary's petition for certification to the Supreme Court of New Jersey.

Appellate brief
Reply brief

Gretel v. Essex, A-007-97T1 (App.Div. 1998)
Sat below: Hon. Charles Delehey, J.S.C. (Mercer County)
In this wrongly decided unsuccessful appeal, the appellate division extended the parameters of the Prevention of Domestic Violence Act's "former household member" jurisdictional prerequisite to include a brief co-tenancy with no romantic nor familial relationship between the litigants and affirmed the issuance of a restraining Order based on defendant's "harassment" of plaintiff by leaving six voice mail messages at her place of employment. (Only the reply brief is available, I was not original counsel on the appeal)  Please note that, at the request of one of the litigants, I have changed the names and docket number on this case.

Reply brief

JAH v. JM A-3676-93T2 (App.Div. 1996)
Sat Below: Hon. Roger Mahon, J.S.C. ( Hunterdon County )
David Perry Davis, while in final year of law school, working with several attorneys and the litigant pro se.
The trial court abused its discretion in denying defendant-appellant's motion to vacate a default judgment, entered while she was suffering from severe alcoholism, that (1) deprived appellant of a palimony claim after a 17 year live-in relationship with respondent,  (2) deprived her of the ability to litigate her assault counts, and (3) deprived her of custody of her son.  On remand, this case made legal history as the first case ever in the state of New Jersey where a jury was empanelled in the Family Part to hear a domestic tort claim.  The case was settled prior to the commencement of the jury trial.

Appellate brief & reply brief - web page
Appellate brief & reply brief - WordPerfect format