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.