UPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

 

APPLICATION TO FILE APPEAL OR MOTION ON AN EMERGENT BASIS

 

TO: Hon. James M. Havey, JAD����� �DATE: �March 4, 2001

 

FROM: David Perry Davis, Esq.������TELEPHONE: ��732-274-9444��

���� The following questions are to be answered by the attorney or pro se litigant requesting emergent relief.� This questionnaire is simply designed to determine if the application be handled in the ordinary course or on an emergency basis.� COMPLETION OF THIS APPLICATION DOES NOT IN ANY SENSE CONSTITUTE THE FILING OF AN APPEAL OR MOTION.� There is no right to be heard orally on an emergency application.

 

CASE NAME: ���Cruz v Cruz����� ����

 

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

���� Hon. Rosalie B. Cooper, JSC, Ocean County

 

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

���� David Perry Davis

���� 31 Jefferson Plaza

���� Princeton, NJ 08540

���� (732) 274‑9444

���� (732) 274‑2050 (fax)

 

���� b)� Whom do you represent?

���� Juan Cruz (For appellate purposes only)

 

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

���� Ocean County Probation Dept

���� PO Nancy Cain

���� Ocean County Justice Complex

���� PO Box 2191

���� Toms River, NJ 08754

 

4.�� Do you have a written order or judgement entered by the judge or a written agency determination?� YOU MUST ATTACH A COPY OF THE ORDER, JUDGEMENT OR DECISION.

���� No order has yet been received by any party.� Please note that in a prior application (Tolbert) that mirrors the present one, no written order was ever entered.� A copy of the (2 page) Order on Emergent Application is enclosed; the Appellate Division acted without a written order in that matter after both Judge Skillman’s law clerk and I attempted unsuccessfully to obtain a written order from the trial court.� I have written the Probation Department and the Judge and requested that an Order be issued and faxed to me.

 

 

5.�� Are there any claims against any party below, either in this or a consolidated action, which have not been disposed of, including counterclaims, cross-claims, third-party claims and applications for counsel fees?� IF SO, THE DECISION IS NOR FINAL, BUT RATHER INTERLOCUTORY, AND LEAVE TO APPEAL MUST BE SOUGHT.

���� No; this is a post-judgement matrimonial matter brought pursuant to R. 5:7-5 and R. 1:10-3.

����

6.�� Have you filed for a stay before the trial court or agency?� If so, do you have a court order or agency decision denying or granting same?

���� No; client was pro-se at the support enforcement hearing.� Also, technically no stay is being sought, summary reversal is being sought.

 

7.�� If the order or agency decision is interlocutory, are you filing a motion for leave to appeal?

���� Not applicable

 

8.�� If interlocutory, are you filing a motion to stay the trial court or agency proceeding?

���� Not applicable

 

9.�� If the order, judgement or agency decision is final, have you filed a notice of appeal?

���� Not yet; will do so immediately upon decision on this application.

 

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

���� Defendant was incarcerated for child support arrears without a proper ability to pay hearing and without any allegation that he has the ability to pay.

 

11.� Has any aspect of this matter been presented to or considered by another judge or part of the Appellate Division by emergent application or prior appeals proceedings?� If so, which judge or part?

���� Not as to this party.� Four prior emergent applications of a similar nature have been filed and all were granted.

 

12.� What is the nature of the emergency?

���� Defendant is being deprived of his liberty.

 

13.� What is the irreparable harm?

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

 

14.� What relief do you seek?

���� Release pending an ability to pay hearing.

���� Minor supplementation of the record on appeal.

 

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

 

���� Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996), Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150 N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34 N.J. 331 (1961), Lake v. Speziale, 580 F Supp 1318 (D.Conn. 1984).� See also unpublished decisions on emergent applications in Weinstein v. Weinstein, (App. Div., 3/27/00), Weinstein v. Weinstein, (App. Div., 4/7/00), Bachman v. Cohen, (App.Div. 4/12/00), Williams & Brookins v. Tolbert, (App.Div. 6/7/00) (copy enclosed).

 

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

���� Yes, by copy of this application

 

17.� If this application is being made during trial, does the judge know of it?

���� Not applicable

 

18.� Have you served your adversary with all papers?

���� Yes

 

19.� Have any transcripts been ordered (particularly of the trial judge’s challenged ruling)?

���� Yes – in possession of appellant (copy enclosed, 4 pages).

����

���� If so, when will the transcripts be available?

���� See above

 

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

Defendant-appellant is in arrears on a child support obligation.� He has arrears of $57,748.74 and an ongoing obligation of $90.00 for current support, $10.00 toward arrears.� The last payment made was in November of 2000 when defendant borrowed $2,000 following his arrest.� Defendant is incarcerated in the Ocean County Jail.� A brief hearing as to his continued incarceration was conducted on February 27, 2001.� At that hearing, it was uncontradicted that defendant is indigent and unemployed.� No inquiry was made into defendant’s assets.� A letter submitted by defendant’s sister and considered by the Court on the record during the hearing indicated that defendant has psychiatric difficulties and is unable to work.� The trial court (correctly) ordered that defendant be evaluated and pursue SSI if he is disabled.� The trial court (incorrectly) ordered defendant to remain incarcerated in the interim.� Defendant seeks summary reversal of the Order incarcerating him pending a proper ability to pay hearing.

 

The “children” involved are both over 18 and neither is a full-time college student.� Defendant seeks to supplement the record to establish this undisputed fact.� Defendant was pro se until his family hired counsel for this appeal; he has never applied to have the children declared emancipated.� This is a “pure debt” incarceration.

 

6/99

���� NOTICE OF APPEAL�������

superior court of new jersey – appellate division

 

title of action as captioned below ������ ������ ������ attorney of record

 

�������������� name David Perry Davis, Esq.

Brenda� Cruz

������������� ������������� ������������� ������ address ������ 31 Jefferson Plaza

����������� Plaintiff���� ������������� ������������� ������ ������ Princeton, NJ 08540

������������� ������������� ������������� ������ phone no.��� (732) 274‑9444

������������� ������������� ������������� ������ attorney for Defendant

Juan� Cruz

������������� ������������� ������������� ������ ������ on appeal from

����������� Defendant Superior Court of New Jersey

������������� ������������� ������������� ������ Chancery Division, Family Part

�������������� Ocean County�������������

������������� ������������� ������������� ������ trial court or state agency

 

������������� ������������� ������������� ������ FM-15-354-85___________________

������������� ������������� ������������� ������ trial docket or indictment number

 

notice is hereby given that ���Defendant��� �appeals to the superior court of n.j. appellate division from the judgement (X )� order� (� )� other (specify) ���������������������

 

entered in this action on ���February 27,��� , 20� 01�� ��in favor of ����Plaintiff��������

 

�������������������������������������������������������������������������������������������������������������������

 

if appeal is from less than the whole specify what parts or paragraphs are being appealed.

��������������������� �����������������������������������������������������������������������������������������������

 

are all issues as to all parties disposed of in the action being appealed? yes� (X ) no� (� )

 

if not is there a certification of final judgment entered pursuant to r. 4:42-2? �n/a

 

priority under r. 1:2-5 yes (�� ) no� (X )� applicable section under the rule �����������

 

in criminal quasi-criminal and juvenile cases� not incarcerated (� )� incarcerated (� )

confined at �����������������������������������������������������������������������������������������

 

give a concise statement of the offense and of the judgement date entered and any sentence or disposition imposed���������������������������������������������������������� ����������������������������������������������������������������������������������������

���������������������������������������������������������������������������������������

���������������������������������������������������������������������������������������

 

1/� notice of appeal has been served on:����������������� date of�� type of

����������������������� name������������������� service��� service

 

trial court judge ��Hon. Rosalie B. Cooper, JSC ���������������

 

 

trial court clerk state agency ���������������������������������������

 

 

attorney general or governmental ��������������������������������������������������������������

office under r. 2:5-1 (h)

 

other parties

name and designation������������������������������� date of�� type of

����������������������� name������������������� service��� service

 

�Ocean County Probation Dept / Child Support Enforcement Division

 

�� Brenda Cruz�������������������������������������������������������������������������������������������� ����3/6/01�� ������FedEx��

 

�������������� i hereby certify that i have served a copy of this notice of

���������������� appeal on each of the persons required as indicated above

 

 

������ ������������������� ��March 4�������������� ���2001� � �������������������������������������������������������������������

����������������������������������������������� �� signature of attorney of record

 

2/� prescribed transcript request form has been served on:

���� (also indicate if sound recorded)

 

����������������� ��� ������������������� ����������������� date of�� type of

����������������������������������� name������������������� service��� service

administrative office of the courts

chief court reporting services �������������������������������

 

court reporter’s supervisor

clerk of county or agency �����������������������������������

 

court reporter �������������������������������������������

 

 

 

i hereby certify that i have served the prescribed court

transcript request form on each of the above persons

and paid the deposit as required by r. 2:5-3(d)

 

n/a already in possession

 

������ ���� ������������������������19��� ����� ���������������������������������������������������������������

���������������������������������������� �signature of attorney of record

3/� ������������� i hereby certify that:

����������������� (� ) there is no verbatim record

����������������� (X ) transcript is in the possession of the attorney of record

����������������� (� ) a motion for abbreviation of transcript has been filed with the court or agency below

����������������� (� ) a motion for free transcript has been filed with the court below

 

 

����� ___________________________� 20____ __________________________________

����������������������������������� �signature of attorney of record

 

������� superior court of new jersey – appellate division

� civil case information statement

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

title in full ���� ��������� ��������� ���� for official use only

��������� ��������� ��������� ���� appeal docket no.

Brenda Cruz

����������� Plaintiff ��������� ���� ���� notice of appeal filed:

��������� ��������� ��������� ����

vs.

��������� ��������� ��������� ���� date sent:

Juan Cruz

����������� Defendant ��������� ��������� ���������

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

appellant’s attorney(s): �������Plaintiff�� ��������Defendant� ���������Other (Specify)

name����� ���� ���� address������ ���� telephone���� ���� client

David Perry Davis, Esq. 31 Jefferson Plaza���� ���� (732) 274‑9444���� Defendant

��������� ���� ���� Princeton, NJ 08540����

 

respondent’s� attorney(s)*:

name����� ���� ���� ���� �� address���� ���� ���� telephone���� ���� client

Ocean County Probation Dept.���� � PO Box 2191���� ����

Child Support Enforcement Unit��� Ocean County Justice Complex

��������� ���� ���� ���� � Toms River, NJ 08754

Brenda Cruz, pro se

 

[indicate which parties, if any, did not participate below or who were no longer party to the action at the time of entry of the order/judgment being appealed.]� Brenda Cruz, plaintiff, did not participate.� Application for enforcement hearing was brought by Ocean County probation, child support enforcement unit.� Arrears are owed to OCBSS.� Plaintiff never consulted as to enforcement application being made.

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

give date and summary of terms of judgement entered below:

Are there any claims against any party below, either in this of in or a consolidated action,

which have not been disposed of, including counterclaims, cross-claims, third party

claims and applications for counsel fees?����� ����� ����� ����� ����� Yes ��������No ���X���

 

If so, has it been certified as final pursuant to R. 4:42-2?����� n/a����� ����� Yes ��������No ��������

(If not, leave to appeal must be sought. R. 2:2-4, 2:5-6)

 

Is the validity of a statute, executive order, franchise or

constitutional provision of this State questioned?� (R. 2:5-1)����� ����� ����� Yes ��������No ���X���

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

give a brief statement of the facts and procedural history:

���� Defendant was improperly incarcerated without an ability to pay hearing, and has now been incarcerated for in excess of 10 days.� See attached application for leave to file an emergent appeal.

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

to the extent possible, list the proposed issues to be raised on this appeal, as they will be described in appropriate point headings pursuant to r. 2:6-2(a)(5).

(appellant or cross appellant only.)

���� I.� See attached application for leave to file an emergent appeal.

 

���� II.� Such other points as research and preparation of the appellant’s brief and appendix may reveal.

 

if you are appealing from a judgment entered by a trial judge sitting without a jury or from an order of the trial court, complete the following:

 

1.� Did the trial judge issue oral findings or opinion?

Yes ��X�� ��No ���������

���� If so, on what date? ��February 27, 2001

2.� Did the trial judge issue written findings or opinion?

����� ����� Yes ��������No ���X��

���� If so, on what date? __________________

 

Caution: Before you indicate that there was neither an opinion nor findings, you should inquire of the trial judge to determine whether findings or an opinion was placed on the record out of counsel’s presence or whether the judge will be filing a statement or opinion pursuant to R. 2:5-1(b).

���� Date of your inquiry: __________________

 

Will the trial judge be filing a statement or opinion pursuant to R. 2:5-1(b)?� Yes ��������No ��X����

 

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

All civil appeals will be screened under the Civil Appeals Settlement Program to determine their potential for settlement or, in the alternative, a simplification of issues, abbreviation of transcript and any other matters that may aid in the disposition or handling of the appeal.� Please consider these when responding to the following question.

 

State whether you think this case may benefit from a conference.�� Yes ��������No ����X���

 

Explain your answer.� A negative response will not necessarily rule out the scheduling of a pre-argument conference.

���� Defendant should be immediately released pending a proper ability to pay hearing; at said hearing he should not be incarcerated absent evidence his non-compliance constitutes a willful disregard of the child support obligation and/or he has the present ability to comply.

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

1.� is there any case now pending or about to be brought before this court which:

� (A) Arises from substantially the case or controversy as this appeal?��� �������������� Yes ��������No ����X���

� (B) Involves an issue that is substantially the same, similar or related to an issue in this appeal? Yes �������No ����X���

 

2.� was there any prior appeal involving the case or controversy?����� ��������� Yes �������No ���X���

 

if the answer to either 1 or 2 above is yes, state:

���� Case name:��� ���� ���� ���� Appellate Division Docket No.:

 

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

 

 

 

 

 

������������������������������������������������� ��������������������������������������������������

�� Name of Appellant or Respondent��� ������ Name of Counsel of Record

 

 

������������������������������������������������� ����������������������������������������������������

������������ Date��������������������������������������� Signature of Counsel of Record

 

� The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for defendant / appellant

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

Brenda Cruz,

 

���� Plaintiff / Respondent

 

�������� vs.

 

Juan� Cruz,

 

���� Defendant / Appellant

::::::::: SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-

 

Civil Action

 

NOTICE OF MOTION FOR

EMERGENT RELIEF

 

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

���� PLEASE TAKE NOTICE that, at a time and place selected by the appellate division, defendant shall move for an Order:

 

���� 1.� Waiving the required filing fee in this matter pursuant to R. 1:13-2(a) and granting leave to appeal out of time pursuant to R. 2:4-1(a);

 

���� 2.� Summarily reversing the trial court’s February 27, 2001 Order pursuant to R. 2:8-3(b) and compelling the immediate release of defendant pending a proper ability to pay hearing;

 

���� 3.� Ordering that defendant shall not be re-incarcerated absent a finding, based on substantial and credible evidence, that he has the present ability to comply with the court orders subject to enforcement or that he has wilfully failed to comply with any employment-related conditions or disability-related conditions set by the court;

 

���� 4.� Permitting minor supplementing of the record on appeal;

 

���� 5.� For such further relief as the court may deem equitable and just.

 

���� Defendant shall rely on the enclosed letter brief, certification and attachments.

 

___________________________�����

��� David Perry Davis, Esq.��

�The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for defendant

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

Brenda Cruz,

 

���� Plaintiff / Respondent

 

�������� vs.

 

Juan� Cruz,

 

���� Defendant / Appellant

::::::::: SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-

 

Civil Action

 

CERTIFICATION

(As to waiver of filing fees)

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

���� DAVID PERRY DAVIS, ESQ., does hereby certify as follows:

���� 1.� I am the attorney for the defendant in this matter and make this application in support of my motion to waive the applicable filing fees.� I am personally familiar with all the facts alleged herein.

���� 2.� My client is presently incarcerated and cannot be reached, either in person or by fax, to provide an affidavit supporting his indigency in connection with this application.� However, I have attached (as exhibit A) a copy of the trial court transcript wherein my client testified as to his indigency, and (as Exhibit B) a letter from my client’s sister, which, although technically hearsay, was considered without objection by the Court below.

���� 3.� I respectfully request that the applicable filing fees be waived based on Mr. Cruz’s inability to pay.

���� 4.�� I hereby certify that the foregoing statements made by me are true.� I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.

 

 

___________________________�

��� David Perry Davis, Esq.

DATED:

 

�The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

Attorney for defendant

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

Brenda Cruz,

 

���� Plaintiff / Respondent

 

�������� vs.

 

Juan� Cruz,

 

���� Defendant / Appellant

::::::::: SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-

 

Civil Action

 

PROOF OF SERVICE

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

���� DAVID PERRY DAVIS, of full age, hereby certifies as follows:

���� 1.� I am the attorney for defendant in this matter.

���� 2.� On this date, I caused a copy of the enclosed Notice of Motion, supporting certification, supporting letter brief, and this Proof of Service to be served upon the following:

 

1. Ocean County Probation Dept

Child Support Enforcement

Ocean County Justice Center

PO Box 2191

Toms River, NJ 08754

By Fax and regular mail

 

2. Brenda Cruz

 

 

 

By FedEx

��������� ����

���� 3.� I certify that the foregoing statements made by me are true.� I am aware that if any of the foregoing statements are willfully false, I am subject to punishment.��

 

 

 

__________________________

��� David Perry Davis, Esq.

DATED:

 

 

The Law Office of

David Perry Davis

31 Jefferson Plaza

Princeton, NJ 08540

(732) 274‑9444

(732) 274‑2050 (fax)

DavePDavis@aol.com

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

 

May XX, 2001

 

Hon. Edwin H. Stern, JAD

Suite 1101, North Tower

158 Headquarters Plaza

Morristown, NJ 07960-3965

Via Fax:

 

Re:� Cruz v. Cruz

���� Docket No. FM-15-354-85

���� Appellate Docket No. A-

 

Dear Judge Havey:

 

���� Please accept this letter brief in lieu of a more formal brief in support of plaintiff’s application to be immediately released from the Ocean County Corrections Center pending an ability to pay hearing, and preventing his re-incarceration unless and until such time as the trial court finds, based on substantial and credible evidence, that defendant has the present ability to comply with the present support Orders.

Factual Statement

���� The record below is sparse.� Mr. Cruz was arrested on or about February 22, 2001 as a result of his failure to pay child support.� A review of defendant’s incarceration status was held on February 27, 2001.� The hearing lasted approximately three minutes.

���� During that hearing, the Court stated that it was considering a letter that had been submitted by defendant’s sister (T 4-3 to 4-6).� Although the letter was technically hearsay, no objection to it being considered was raised.� That letter asserted that defendant “suffers from some mental abnormality that renders him unable to function and process things in the same manner as the average, normal individual in our society” (2a at 3).� She also asserted that she was personally familiar with defendant and that he is “indigent” (3a at 6).� Aside from taking care of his parents, which he apparently was able to do without difficulty, defendant’s sister stated that defendant “has no job, he has no money, he has no assets.” (3a at 6).�

 

���� The records of the Probation Department indicated that defendant had paid $2,000 in November of 2000 (T 3-4 to 3-8) and has arrears totalling $57,748.74[1].� His driver’s license had recently been suspended (T 3-16 to 3-17) and he was not regularly employed, working side jobs to repay the funds that had provided by his family to secure his release (T 3-2) and taking care of his disabled parents (.

���� The trial Court noted the statements of defendant’s sister and indicated that defendant should be immediately evaluated.� No inquiry was made by the Court as to any savings or assets that defendant could tap in order to make a payment toward arrears.� No purge amount was set by the Court.

���� Defendant has now been incarcerated for at least 11 days and remains unable to obtain to pay anything toward his arrears.

 

���� I.� DEFENDANT MUST BE IMMEDIATELY RELEASED AS HE WAS NOT AFFORDED AN ABILITY TO PAY HEARING AND NO EVIDENCE EXISTS THAT HE HAS THE ABILITY TO PAY THE ARREARS AMOUNT SET BY JUDGE COOPER ON FEBRUARY 27, 2000.

���� At the summary hearing in this matter, which did not occur until defendant had been in custody for approximately a week, there was no meaningful inquiry into whether defendant had the present ability to pay a significant portion of the $57,748.74 in child support arrears that he owes (transcript, generally).

���� Without a scintilla of evidence that Defendant has the ability to pay he cannot be incarcerated for child support arrears.� Saltzman v. Saltzman, 290 N.J.Super. 117 (App.Div. 1996), Pierce v. Pierce, 122 N.J.Super. 359 (App.Div. 1973); Federbush v. Federbush, 5 N.J.Super. 107, (App.Div.1949); Biddle v. Biddle, 150 N.J.Super. 185 (Ch.Div. 1977); Department of Health v. Roselle, 34 N.J. 331 (1961), Commentary to R. 1:10-3, Current New Jersey Court Rules.

���� This issue was recently visited by three appellate panels, who issued unpublished opinions on March 27, 2000 in Weinstein v. Weinstein (“Weinstein I”), on April 7, 2000 in Weinstein v. Weinstein (“Weinstein II”) on April 12, 2000 in Bachman v. Cohen (“Cohen”), and on June 7, 2000 in Williams & Brookins v. Tolbert (“Tolbert”).� Copies of these opinions are enclosed.

���� In these opinions, three appellate panels summarily reversed four trial court orders incarcerating child support obligors in situations analogous to the case before this Court.� In Weinstein I, the appellate division issued a short (two page) Order reversing the trial court on the grounds that “the trial court failed to determined whether defendant has the ability to pay all or a portion of the support arrears.”�

���� The appellate division ruled:

���� An order incarcerating a debtor-spouse in aid of litigant’s rights which contains an amount to be paid as a condition for release presupposes that the judgement debtor has assets that have been secreted or otherwise placed beyond the reach of execution. . . the purpose of such an order, and its legal justification, is to induce compliance with a lawful order.� In such cases, the incarcerated party has the key to freedom in his/her hands because the debtor-spouse has the ability to comply with the order as a condition for release.� The record before us is devoid of any evidence that defendant has assets that can be used to satisfy the release amount ordered by the court. . .

���� The Court went on to instruct that the appropriate remedy under the facts presented would be to order the obligor to obtain employment and require strict reporting requirements, and, if an obligor failed to comply at that juncture, the court could consider incarceration or referring the matter to the prosecutor for proceedings pursuant to N.J.S.A. 2C:24-5 (Willful Nonsupport).

���� In Cohen, the defendant had recently paid $20,476.44 in arrears while maintaining his current obligation, but had failed to make an additional required payment in the amount of $1,500 toward arrears.� While the appellate division “appreciate[d ] the frustration and skepticism of the court and counsel for the [obligee ]”, Judge Cuff held that the record did not support Mr. Cohen’s continued incarceration, and specifically stated “defendant’s continued incarceration after twelve (12) days may suggest that he has exhausted that source of funds.”

���� In the case before this Court, the defendant has now been incarcerated for over eleven days.� Although defendant stated a belief that he would be able to borrow funds from his family to secure his release (T 3-22 to 3-23), he was apparently unable to do so.� Moreover, the focus of the trial court should have been on the ability of the obligor to tap his own resources, not those of his family, to bring himself into compliance with the Court’s order and to secure his release.� Far from the Court finding that defendant had the ability to pay the $57,748.74 arrearage, the trial Court referred defendant to the Social Security Administration and suggested that disability funds (which obviously were not then available to defendant) could be used to make payments toward defendant’s debt.

���� Finally, it should be noted that it was undisputed in the trial Court that the children involved are 20 and 21 years old and not full-time students (4a at 11), but that no application for emancipation had been brought.� The Probation Department records indicate that defendant has a child support obligation of $90.00 per week with an additional $10.00 per week toward arrears.[2]� With no legitimate child support obligation for his emancipated children, Mr. Cruz is incarcerated solely for his failure to pay a debt.� Whatever public policy motivations may exist to support a decision to incarcerate a child support obligor carry far less weight when, as here, the children are emancipated and the only issue is one of repayment of a debt.

���� ���� II.� THE FILING FEE SHOULD BE WAIVED.

���� It was undisputed that defendant is unemployed and indigent.� According to the certification credited by the trial Court, defendant is ill enough to justify an evaluation of his mental state (T 4-3 to 4-10).� No evidence to the contrary was supplied to the trial court.� The filing fee for the instant appeal should be waived pursuant to R. 1:13-2 (a).

Conclusion

���� This Court should summarily reverse Judge Cooper’s February 27 Order and require the immediate release of Mr. Cruz, conditioned on his cooperating with future enforcement proceedings and pursuing any disability income that might become available to him.� This Court should further order that defendant shall not be re-incarcerated absent a finding that he has the present ability to pay or that he has failed to comply with his duty to pursue disability income and/or employment.

Respectfully submitted,

 

David Perry Davis, Esq.

 

cc:� Juan Cruz

���� Maria Martinez

���� Ocean County Probation Dept.,

���� Child Support Enforcement Unit

���� Hon. JSC

 

DPD/jz

���� [1] Approximately $52,000 of this amount is owed to the Ocean County Board of Social Services.� The application resulting in Mr. Cruz’s incarceration was brought by the Ocean County Probation Department without the knowlege nor participation of plaintiff.

���� [2] The state’s child support database is available by calling 800-621-KIDS.� Mr. Cruz’s account number is CS 6064 7305 A.