A-3601-13t2 Ariel Schochet v. Sharona Schochet
435 N.J. Super. 542
| N.J. Super. Ct. App. Div. | 2014Background
- Ariel Schochet, ordered to pay weekly alimony and child support, accumulated large arrears (~$250,000) while now earning about $600/week; enforcement proceedings under Rule 1:10-3 (ability to comply) followed.
- Schochet faced potential incarceration for nonpayment; counsel was appointed for his ability-to-pay hearing, but the court denied his request that Bergen County retain experts at public expense.
- Less than a week before the scheduled hearing, Schochet sought appointment of an employability expert and a CPA to analyze past, present, and future earnings and employability. County counsel and the trial court denied the request.
- The Appellate Division granted emergent leave to appeal the interlocutory denial and considered whether Pasqua v. Council requires appointment of experts at public expense for indigent obligors facing incarceration.
- The court reviewed the procedural Directives (2008 and 2014) governing enforcement hearings and the Probation Obligor Questionnaire, concluding those procedures generally supply sufficient factual information for ability-to-comply determinations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fourteenth Amendment/New Jersey Constitution require appointment of experts at public expense for indigent obligors facing incarceration | Pasqua mandates experts as well as counsel because incarceration risk creates a high risk of erroneous determination | Pasqua requires counsel for indigent obligors but does not extend to publicly funded experts; existing procedures usually suffice | Denied — appointment of experts at public expense is not constitutionally required on these facts |
| Whether Schochet is indigent and thus automatically entitled to publicly funded experts | Schochet claims indigence (income near poverty guidelines when accounting for garnishments) | Court notes Schochet earns ~$600/week and no formal indigence finding was made; indigence not established here | Court did not find indigence and observed counsel was provided; indigence not shown |
| Whether Rule 1:10-3/Directive procedures are insufficient without expert testimony | Schochet contends employment-search evidence is complex and beyond the court’s ken, requiring expert analysis to avoid erroneous incarceration | Defendant and court contend the Probation Questionnaire and court questioning ordinarily produce adequate facts; Family judges routinely evaluate such financial evidence | Court held procedures and judge expertise are typically adequate; extraordinary cases only would require experts |
| Admissibility/necessity of expert testimony at an ability-to-comply hearing | Expert testimony would qualify employability and marketability issues and assist the court | Expert testimony must meet N.J.R.E. 702 and plaintiff failed to show subject matter beyond judge’s competence | Court found no showing that N.J.R.E. 702 issues or complexity warranted appointment of experts here |
Key Cases Cited
- Pasqua v. Council, 186 N.J. 127 (2006) (counsel must be appointed for indigent obligors facing incarceration at child support enforcement hearings)
- DeHanes v. Rothman, 158 N.J. 90 (1999) (expert testimony admissible when subject is beyond the ken of the average factfinder)
- Cesare v. Cesare, 154 N.J. 394 (1998) (appellate deference to Family Part factual findings supported by the evidence)
- MacKinnon v. MacKinnon, 191 N.J. 240 (2007) (deference to trial court credibility findings in family matters)
- Milne v. Goldenberg, 428 N.J. Super. 184 (App. Div. 2012) (trial court may find willfulness where party intentionally prioritizes other expenditures over court-ordered obligations)
- Pierce v. Pierce, 122 N.J. Super. 359 (App. Div. 1973) (reversal where record fails to demonstrate obligor's ability to comply with order enforced by coercive remedy)
- Caplan v. Caplan, 364 N.J. Super. 68 (App. Div. 2003) (framework for evaluating potential earning capacity at plenary modification hearings)
- Halliwell v. Halliwell, 326 N.J. Super. 442 (App. Div. 1999) (discussing imputing income in modification contexts)