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.