The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

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January 9, 2002


Hon. Linda R. Feinberg, A.J.S.C.

Superior Court of New Jersey

175 South Broad Street

Trenton, NJ 08650-0068


Re:  Leonard, et al v. Blackburn, et al

     Docket No. MER-L-3761-01


Dear Judge Feinberg:


     Please accept this letter brief in lieu of a more formal submission in reply to the opposition filed in this matter and in further support for plaintiffs' application for class certification and a preliminary injunction.

                     PRELIMINARY STATEMENT

     Defendants' first and primary argument rests on the untenable proposition that the majority of the named plaintiffs in this matter were arrested and detained for months on end as a result of their failure to appear, not as a result of their inability to pay the release amounts set by the Court.

     This claim flies in the face of the six summary appellate reversals[1] that were provided with plaintiffs' Order to Show Cause and are in direct contradiction to the transcripts of the hearings, attached hereto.

     It is both admitted and irrelevant that the majority of the plaintiffs were initially arrested as a result of their failure

to appear.  Plaintiffs have not claimed an illegal arrest was involved.  In fact, the only claim relating to the time spent in jail between arrest (for whatever reason) and review before a Family Part judge is that plaintiff's constitutional rights are being violated when, for example, it takes seventy-one (71) days from the time of arrest until their first review.[2]  A criminal defendant is entitled to review and at least a preliminary bail within 12 hours of arrest.  R. 3:4-1(2).  By contrast, child support detainees have been held for as long as 93 days without having any review of whether their incarceration continues to serve a legitimate coercive goal.[3] 

     Defendants' legal arguments, claims and the contents of the supporting certifications from the probation department are unsupported by any cited legal authority and are at best confusing.  Under the system defendants appear to be alleging is in place, when an obligor is arrested for failing to appear for an enforcement hearing, a purge amount is set and the obligor is held indefinitely (subject to review "every two weeks"[4]).  No explanation of the factors allegedly used to determine the "purge" amount is provided.  If this is a bail, the factors pursuant to  State v. Johnson, 61 N.J. 351 (1972) must be applied.  If it is a coercive incarceration, the amount must be tied to the ability of the obligor to pay.  There is no other form of constitutionally permissible incarceration in New Jersey.  Defendants' attempt to create some mysterious new form of constitutionally permissible incarceration based on a failure to appear is invalid on its face.  Defendants provide absolutely no support for the assertion that the Constitution, the provisions of R. 1:10-3 and all the supporting caselaw completely vanish when a litigant is arrested for failing to appear.  Failure to appear can be prosecuted as criminal contempt and is a legitimate factor to be considered when setting a bail.  State v. Johnson, 61 N.J. at 354.  It is not a legitimate factor when establishing the amount required to purge a contempt order and cannot justify the system defendants seem to assert is in place.

     Moreover, the remedies available to the Court when a litigant is adjudged to be in contempt as a result of a failure to appear are very specifically enumerated in R. 1:2‑4 (a).  In spite of the case law provided with plaintiffs' original application and in spite of the ongoing series of summary reversals, defendants inexplicably continue to assert that a purge amount can be legitimately established, during a court appearance with the obligor present,[5] without tying the release amount to the ability of the obligor to pay same.  This issue is well settled and has been discussed at length in volumes of case law dating back to the origins of our system of jurisprudence.  See, e.g., Nussbaum v. Hetzer, 1 N.J. 171(1948), Lathrop v. Lathrop,  57 N.J.Super. 532 (App.Div. 1959) ("Effect should be given to the saying  . . . that he who is guilty of civil contempt has the keys of his prison in his own pocket."), Ex Parte Clark, 20 N.J.L. 648, 45 Am.Dec. 394 (1894).

     The remedies a court may impose on a litigant to purge themselves of contempt do not include the system of imprisonment "without regard to the ability to comply" that defendants seem to claim exists.

     A purge amount established at "full arrears" is permissible only during what should be the very brief period between arrest and appearance at the first ability to pay hearing.

     Amazingly, Ms. VanEk and Ms. DeSaw certify (the "Mercer Certification") in paragraph nine that "none of the Mercer Plaintiffs was incarcerated for failure to pay child support."  This completely specious claim is directly contradicted by the transcripts of the proceedings involving the Mercer Plaintiffs and cannot be described as having been made in good faith.  It is a complete inversion of what is occurring.

     Exhibit D is the November 15, 2001 appearance of named plaintiff Gary Davis, before Hon. Audrey P. Blackburn, JSC.  In direct contradiction to the claims made in the Mercer Certification, Mr. Davis was incarcerated on September 28 - far more than "two weeks" prior to November 15.  At the hearing, he was jailed as a result of his failure to pay child support.  A $1,000 release amount was set without any inquiry whatsoever into Mr. Davis' ability to pay same.  See Exhibit D at Page 6.  Exhibit E is Mr. Davis' second court appearance, on December 14, 2001 (again, far more than the claimed "two weeks" elapsed between hearings).  On this date, Mr. Davis appeared before Hon. Thomas P. Kelly, JSC, and was again incarcerated as a result of his failure to pay child support and, once again, the Court set a release amount without any evidence Mr. Davis had the ability to pay same.  See Exhibit E at 7.  Not incidentally, Mr. Davis is the father of five children, all of whom were deprived of his non-financial child support during the nearly 90 days he spent in jail, unable to secure his release.[6]  The Court's December 14 Order jailing Mr. Davis was summarily reversed upon an emergent application to the Appellate Division.  See Exhibit W.

     Exhibit F is the December 14, 2001 appearance of Todd Logan.  He had been arrested on October 9.  The trial court set a release amount without inquiring into his ability to pay same (See Exhibit F) and was summarily reversed on December 20.

     Exhibit G is the November 15, 2001 ability to pay hearing of named plaintiff Jeffrey Leonard.  The transcript indicates he had last been reviewed on October 11 - again far more than the claimed "two weeks" (See Exhibit G at Page 4, Line 4).  A release amount was set without any inquiry into his ability to pay same (See Exhibit G at Page 6).

     The remainder of the transcripts (all transcripts, from Ocean, Mercer and Monmouth Counties[7]) and the summary reversals tell the same story.  It cannot in good faith be represented to this Court that these people were kept in jail for "failing to appear."  They may originally have been arrested for this reason, but the subsequent ability to pay hearings were Constitutionally and legally inadequate.

     The Monmouth County Probation Department's certification is also inaccurate.  The attached transcripts and summary reversals contradict the bad faith claim that no one is incarcerated as a result of a failure to pay child support.  The transcripts of Mr. Cohen's hearing also proves that he did not, as directly claimed in the certification, fail to appear.  He was in fact incarcerated as a result of his failure to pay child support.  The transcript of his court appearance is attached hereto as Exhibit A.

     The Certification from Michelle Tierney of Ocean County (received at 11:14 a.m. Wednesday, January 9, 2002, and requiring the reprinting of this brief) is the only certification that honestly recounts the system now in place.  At paragraph two, the affiant crossed out the words supplied by the certification's author and corrected same to reflect the truth:

     2.  ... a child support obligor .... is summoned to court to explain ... why payments have not been made.  It is at this time that a determination of an obligor's ability to pay be  is  may be made.  The obligor  is  may be given the opportunity at this hearing to present evidence ... If a legitimate inability to pay is demonstrated, the Obligor  would  may  not be incarcerated but rather some accommodation  would  may be fashioned to fit the situation. (The Court should note the initials of the affiant next to each change.  Emphasis added.)


     Each and every transcript (Exhibits A-P) verifies that the inconsistent and unconstitutional process now admitted to by Ocean County is in fact ongoing throughout the state.  Each transcript demonstrates a judge setting a purge amount based on two impermissible factors: the payment history of the obligor and the total arrears owed, and in every case the trial court makes no inquiry into whether the obligor has assets available to pay the purge amount set.  In the transcripts attached hereto, not once does a judge indicate that the purge amount is being set based on the obligor's failure to appear.

     Defendants' claim, even if true, would provide no defense.

     The record unequivocally demonstrates that plaintiffs have been held under allegedly coercive incarcerations as a result of trial courts' failure to make the required findings that plaintiffs have the current ability to pay whatever release amount is set, thereby legitimatizing a "coercive" incarceration.  This is not an "allegation."  The enclosed transcripts and summary reversals, which the Court can take judicial notice of, establish this as an indisputable fact.

     Defendants' next point claims that plaintiffs "have been incarcerated for ... their failure to comply with a court order issued after their ability to pay had already been determined."  This precise argument - that a sufficient determination of "ability to pay"; is made when a child support obligation is imposed (or a request to reduce same is denied) - has been soundly rejected by the Appellate Division.  The law is clear that there must be a contemporaneous finding of an ability to pay to justify a "coercive" incarceration.  See, e.g., R. 1:10-3 and commentary, Acceturo v. Acceturo, 242 N.J. Super. 281, 287 (App.Div.), certif. denied, 127 N.J. 324 (1990).  A finding that a litigant has not shown changed circumstances sufficient to warrant modification of an Order is not synonymous - and cannot replace - a finding that the litigant has the current ability to pay a release amount set by the Court.  See also Bachman v. Cohen.[8] 

     Next, defendants claim "if a legitimate inability to pay is demonstrated, the Obligor would not be incarcerated but rather some method of payment appropriate to the situation would be ordered."[9]  In fact, R. 1:10-3 explicitly requires that, prior to the incarceration of a litigant for a Family Part obligation, the obligee (or the probation department as the assignee of the obligee) must "demonstrate to the court that the judgment debtor has assets that have been secreted or otherwise placed beyond the reach of execution."  In contrast to defendants' assertion, there is no burden on the obligor to show an inability to pay.  Before the extreme relief of depriving a citizen of his or her liberty can be justified, the burden is rightly on the obligee to demonstrate to the Court that assets exist justifying a coercive incarceration.  The transcripts and reversals demonstrate that defendants routinely do not make any findings as to the ability of the obligor to pay the release amounts set.

     At least on a provisional basis, the classes should be certified.  The injunctive relief sought in plaintiffs' order to show cause should be granted forthwith.


     1.  Defendants claim that, at an enforcement hearing, a hearing officer or judge, upon a finding of an inability to pay, can modify a child support order.  This is procedurally and legally incorrect.  Procedurally, enforcement and modification are separate and distinct issues and an application to modify must be brought separately.  See R. 1:10-3, 5:7-5.  Legally, the standard applied on an application to modify support is not "an inability to pay," it is "a substantial change in circumstances warranting modification" of the obligation.  Lepis v. Lepis, 83 N.J. 139, 154 (1980).

     2.  The second half of defendants' #2 is true and contradicts the first defense raised.  Defendants state:

     Again, the obligor would appear before a judge to have the purge amount set.  If the Obligor does not pay the "purge" amount, he or she would remain incarcerated until the next scheduled ability to pay hearings or hearings for review are conducted.

     This is the heart of the application before this Court.  Nowhere do defendants claim that an inquiry is made into the ability to pay of the obligor during their appearance before a judge.  Again - plaintiffs admit that the arrests are justified; they have never challenged same.  The challenge is to (1) the time period between arrest and review and (2) the failure of the court to make contemporaneous findings of a current ability to pay before setting a "purge" amount and imposing or continuing a coercive incarceration.

     3.  Plaintiffs agree that obligors may be arrested on other matters and held prior to their review in Family Court on a child support warrant (or detainer).  The reply made to paragraph 2 applies equally here.

     4.  The purge amount is neither "bail" nor a "fine," both of which are criminal law terms.  Again, if defendants are implying that plaintiffs are being held as a result of a criminal offense, plaintiffs' constitutional rights as criminal defendants have been completely ignored.

     The "purge" amount is more akin to ransom (albeit a legitimate ransom when the obligor has the ability to pay it) than "bail" or a "fine."  It is the required payment toward arrears that will result in a litigant having their liberty returned.  The money is not "not returned", which implies it is retained by the entity to which it is paid (the state).  In fact, it is turned over either to the custodial parent or the county Board of Social Services.

     5.  It is agreed that an initial purge amount set at the time of the issuance of a warrant for failure to appear can be any amount up to the full arrears owed.  Again, this is not the issue.  The issue is how long plaintiffs are held prior to review and what happens at the review hearing(s).  Defendants acknowledge in paragraph five that the plaintiffs are incarcerated for "failure to comply with a court order" yet they again ignore the issue - that incarceration for such failure is only legitimate if the obligor has the ability to comply with said order.

     Defendants appear to be alleging that once a litigant does not show up for an enforcement hearing, they lose all their constitutional rights and are no longer entitled to the protection of any law whatsoever:  Not charged with a crime, they have no right to counsel nor to bail.  Not being held "coercively" (as a result of failure to pay support), they are not entitled to the protection of R. 1:10-3 that a current ability to pay be shown.  Under defendants' declaration of the facts, a person could conceivably spend life without the possibility of parole in jail for a single missed enforcement hearing.

     6.  Again, defendants' factual allegations as to the reason for plaintiffs' initial arrest are generally correct and, more importantly, they are completely irrelevant.  Not all the named plaintiffs (and certainly not all members of the plaintiff class) were arrested for failing to appear.  Named plaintiff Ronald Cohen walked into a child support hearing and left in handcuffs.  He did not fail to appear (Exhibit A).  Jeffrey Jones was arrested under a child support warrant; he did not fail to appear.

     As to the other named plaintiffs, defendants curiously state plaintiffs were arrested "... for failing to comply with a court Order, not for non-payment of child support."  The court orders at issue require the payment of child support.  It was by the nonpayment or underpayment of support that the Order was violated.

     7.  In their paragraph seven, defendants again confuse an enforcement proceeding with a modification proceeding.  Moreover, it is untrue that "none of the plaintiffs petitioned for a change in their child support amount or voluntarily came to court to explain why their payments were not being made."  Plaintiff Ronald Cohen did exactly that, and the vast majority of plaintiffs desperately attempted to explain their nonpayment at the enforcement hearing where they were incarcerated.

     8.  Defendants repetitively state (including in their paragraph 8) that "no Obligor is incarcerated for non-payment of child support without first having an ability to pay hearing."  Again, this is not the issue at hand.  The issue is what occurs at said "ability to pay" hearings; no findings are made, and in fact no inquiry is made, into the ability of the obligor to pay the release amount set.  The resulting incarcerations are therefore improper (see transcripts, summary reversals).

     9.  Each of the defendants committed the acts alleged in the complaint.  That is, each has conducted ability to pay hearings and has incarcerated members of the plaintiff class (whether named or otherwise) without making the required findings.

     Most importantly, plaintiffs do not claim that defendants "are guilty of wrong-doing" and this inflammatory language is inappropriate.  "Guilty" is a term applicable to criminal law and there has never been any allegation but that each member of the defendant class has at all times acted with complete integrity in the performance of their judicial duties.  It is the system that is being challenged, not the character of any of the defendants, named or otherwise.


                            Point I



     Initially, this issue is not properly before the Court.  Pursuant to R. 1:6-3(b), a cross application can only be listed for hearing if it relates to the subject matter of the original motion.  This issue is outside the scope of the order to show cause and therefore should not be considered.

     Substantively, when ruling on a motion to dismiss, all fact questions are resolved in favor of the non-moving party.  Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995), Horby v. King, 13 N.J.Super. 395 (Law Div.1951).

     However, even if the burden was on plaintiffs to prove their case at this early stage of the proceedings, that burden has been met and exceeded.

     Throughout their pleadings, defendants make conclusory and unsupported factual allegations.  They provide certifications which are (1) not evidential and (2) in direct contradiction to the contents of the transcripts attached hereto.  Outside these inadmissible documents, they provide absolutely nothing; not a single exhibit nor a single case that supports their claims.

     By great contrast, attached hereto are transcripts of a number of proceedings.  As these are certified transcripts of the proceedings of another court, this Court can take judicial notice of them.  They prove, beyond any doubt whatsoever, that plaintiffs claims are meritorious and defendants' portrayal of plaintiffs' incarcerations are disingenuous. 

     The defendant class continues to violate the clear text of the Constitution of the State of New Jersey.  Pursuant to Article 1, ¶12, "no person shall be imprisoned for debt in any action or on any judgment founded upon contract, unless in cases of fraud; nor shall any person be imprisoned for a militia fine in time of peace."  In sum, if the Court were to address the merits beyond the certification and injunction issues in order to consider a summary disposition of the complaint at this juncture, it could only be in plaintiffs' favor.

     Defendants claim that all of the emergent appeals were heard on an uncontested basis is similarly false.  The opinion in Bachman v. Cohen (Exhibit R) reflects Ed Frankin, Esq. as opposing counsel.  As the Court is undoubtedly aware, Mr. Frankin is a partner at Jacobwitz Grabelle Defino McGouhran & Latimer, a premiere family law firm[10] in Monmouth County.  Wade v. Sweeney (Exhibit X) was opposed by John A. Hartmann III, a senior partner at Princeton's Pellettieri, Rabstein and Altman and a family law practitioner with over 30 years experience.

     It should be noted that neither of these firms (nor the Appellate Division sua sponte) pursued defendants' claim that the obligors were not incarcerated as a result of their failure to pay child support, as this claim cannot be supported by any reading the facts.  The attached transcripts show unequivocally that the plaintiffs were incarcerated for no reason other than their nonpayment or underpayment of child support and that no inquiry was made into their ability to pay the release amounts set.

                           Point II


     Defendants are accurate that the power to issue an injunction of the magnitude sought by plaintiffs is an awesome one.  It is, however, no more awesome than the duty placed on this Court to support and defend the Constitution and laws of our state.  The injunction should issue.

     The transcripts are properly before this Court and via the exercise of judicial notice they prove that there are no material facts at issue requiring the Court to refrain from issuing the requested emergent injunctive relief.

     Although not raised by defendants, plaintiffs wish to stress that the injunction issue is not mooted by the release of the named plaintiffs from incarceration.  Under  City of Los Angeles v. Lyons, 461 U.S. 95, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), a plaintiff in a civil rights action is entitled to injunctive relief where they allege a probability that the complained of conduct will be repeated.  Moreover, although the named plaintiffs may not now be incarcerated, other members of the plaintiff class are in jail.


                           Point III



     Class actions are liberally construed, and such actions are permitted unless there is clear showing that they are inappropriate or improper.  There is a strong preference in the law for class certification when the requirements of R. 4:32-1 have been satisfied.  Carrol v. Cellco Partnership,  313 N.J.Super. 488 (App.Div. 1998).

     Defendants have not shown that class certification under the allegations presented to this Court would be "inappropriate or improper."  In fact, no legitimate reason whatsoever has been presented.

     Initially, defendants' claim that class certification should be denied because a motion to dismiss is pending is offered without any support in the law.  This is because there is no support for this proposition.

     Defendants' claim that class certification should be denied because plaintiffs' have not provided proof of their allegations is similarly offered without support.  Initially, this is not the standard applicable to an application for class certification.  "While the merits of a putative class representative's substantive allegations should not factor into the court's decision regarding class certification, the court should rigorously analyze the allegations of the complaint relating to the maintainability of the action as a class action."  Osgood v. Harrah's Entertainment, Inc., 202 F.R.D. 115, 120 (D.N.J. 2001) citing Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).  Second and more importantly, it is plaintiffs who have offered admissible and convincing proof of their claims via the transcripts attached hereto and the series of summary reversals from the Appellate Division.  Defendants have offered nothing by way of rebuttal and their claims that plaintiffs have failed to provide proof ring hollow.

     As to numerosity, plaintiffs enclosed an article from the New Jersey Lawyer indicating that there were in excess of 50,000 child support enforcement hearings last year.  In the absence of proper discovery, which can only occur after class certification is granted, this neutral documentary evidence exceeds the "speculative and conclusory representation" standard as to the requirement of many.  W.P. v. Poritz, 931 F.Supp. 1187 (D.N.J. 1996), Doe v. Charleston Area Medical Center, Inc.,, 529 F.2d 638 (W.Va. 1975), Young v. Pierce, 544 F.Supp. 1010 (E.D.Tex. 1982).

     While it is true that less than 500 judges are assigned to the Family Part, the number exceeds 120.  Also, new judges are routinely assigned to the Family Part and judges on other assignments are sometimes asked to "fill in" when needed in the Family Part.[11]  Plaintiffs are obligated to show only that joinder would be "difficult", "inconvenient" or "impracticable."  See, e.g., Weiss v. York Hospital, 745 F.2d 786, 808 (3d Cir.), certiorari denied 105 S.Ct. 1777, 470 U.S. 1060, 84 L.Ed.2d 836 (1984).  Moreover, judges of the Superior Court have been certified as a class in many similar cases.  See, e.g., Lake v. Speziale, 580 F.Supp. 1318 (D.Conn.1984), Mastin v. Fellerhoff, 526 F.Supp. 969 (S.D.Ohio 1981).

     Parenthetically, plaintiffs enthusiastically agree with defendants' assertion that "each judge in the state who does hear this type of matter conceivably may have his or her own method of proceeding in these matters."[12]  Plaintiffs will stipulate to this allegation.  It is why a class action is necessary and appropriate.

     In their moving papers, plaintiffs asserted that "the precise underlying facts surrounding each case may differ."  Defendants' claim, again with no legal citation, that this deprives the plaintiff class of commonality.  This is completely false.  In fact, "the commonality prerequisite requires only that there be some questions of law or fact common to the class.   It is not necessary that all the factual or legal issues raised by the case concern each class member." Vargas v. Calabrese, 634 F.Supp. 910, 918 (D.N.J. 1986), citing 7 C. Wright & A. Miller, Federal Practice & Procedure Section 1763 at 603 (1972) (Emphasis on "some" in original).

     Defendants' opposition to typicality is similarly made without legal citation and is similarly flawed.  "The Third Circuit has adopted the test for typicality advanced in 7 Wright and Miller, supra Section 1763 at 614 . . . [P]laintiff has satisfied [the typicality requirement] if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory." Id. at 919, citing Weiss v. York Hospital, 745 F.2d 786, 806 n. 36 (3rd Cir.1984).

     Finally, when emergent injunctive relief is sought, the Court is authorized to provisionally certify the classes for the purpose of addressing the application for injunctive relief, without prejudice to defendants' right to later seek decertification of the classes.  See, e.g.  Murillo v. Bambrick, 508 F.Supp. 830 (D.N.J. 1980). 

     Plaintiffs respectfully submit that the allegations of the complaint, especially when considered in conjunction with the proofs thus far submitted, justify the entrance of an Order certifying the defendant and plaintiff classes.


                           Point IV



     Defendants offered no opposition nor discussion of this issue.  Plaintiffs respectfully ask the Court to consider this portion of the application to be unopposed and to grant same for the reasons set forth in plaintiffs' supporting brief.



     For the above listed reasons, the classes should be certified and the requested preliminary injunction should issue forthwith.




        Respectfully submitted this   9    day of January 2002





                                          David Perry Davis, Esq.

     [1] During the pendency of this Order to Show Cause, two more reversals were handed down by the Appellate Division after Hon. Thomas P. Kelly, J.S.C. ordered that two of the named plaintiffs remain incarcerated (See Transcripts of hearings attached as Exhibits E & F, Summary reversals attached as Exhibits V & W).

     [2] As of December 5, 2001, there were five known obligors who had been held for periods in excess of 40 days without any type of review (Craig Williams - 93 days, Jeffrey Jones - 61 days, Todd Logan - 51 days, David Chavis - 40 days, Cheyanne Johnson - 22 days).  Again, these are only the known cases, from one county.

     [3] Counties vary widely on this issue.  In Middlesex persons incarcerated for child support (or failing to appear for a child support hearing) are reviewed every day that court is in session.  Other counties have reviews two (Ocean) or three (Somerset) times per week.  Other counties schedule reviews every 30-60 days.

     [4] Both this statement and the claim that the obligors are not held as a result of their failure to pay child support is

contradicted by every transcript.  By way of one example only, these claims are diametrically opposed to the Court's statement during the ability to pay hearing in Brookins v. Tolbert:


THE COURT:  I have people who have sat for six months for owing seven and $8000...  (Exhibit L, Page 5, Lines 13-14).

     [5] There appears to be a conflict between the certifications submitted by defendants and their brief.  In the certifications, it appears (with the notable exception of Ocean County) that the "failure to appear" purge amount is set at the time of the execution of the warrant following an obligor's nonappearance.  This purge amount is established without the obligor present and therefore is not tied to the ability of the obligor to pay.  This procedure is not challenged herein.  Defendants' brief, however, states "the obligor would appear before a judge to have the purge amount set.  If the Obligor does not pay the purge amount, he or she would remain incarcerated" (Brief at counter statement of facts, paragraph 2).

     [6] See Affidavit of Gary J. Davis submitted with Order to Show Cause.

     [7] Additional transcripts, from Atlantic, Bergen, Burlington, Cape May and Essex Counties are being ordered and should be available within two weeks.

     [8] Exhibit R.  Please see pages three through six for a detailed discussion of this issue citing to published case law.


     [9] Defendants' brief at page three, top paragraph.

     [10] The firm represents, among other high-profile clients, Hon. Bradley J. Ferencz, JSC, in his divorce proceedings.

     [11] Named defendant Hon. Rosalie B. Cooper, JSC is not assigned to the Family Part in Ocean County, but was asked to conduct "pay or stay" hearings in March of 2000.

     [12] Defendants' brief, Page 14, Lines 7-9.