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.