DAVID H. PINCKNEY VS. CATHERINE PINCKNEY (FM-18-0138-19, SOMERSET COUNTY AND STATEWIDE)

D
                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2254-19T2

DAVID H. PINCKNEY, a/k/a
DAVID HENRY PINKNEY,

          Plaintiff-Appellant,

v.

CATHERINE PINCKNEY,

     Defendant-Respondent.
________________________

                   Submitted January 4, 2021 – Decided February 4, 2021

                   Before Judges Gooden Brown and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Somerset County,
                   Docket No. FM-18-0138-19.

                   David H. Pinckney, appellant pro se.

                   Respondent has not filed a brief.

PER CURIAM

          Plaintiff further appeals from the November 1, 2019 Family Part order

entered following an ability to comply hearing, compelling his incarceration
until he paid $1000 of the $57,526 owed in support arrears, which payment was

ultimately made to facilitate his release. For the reasons that follow, we affirm.

      Parents charged with violating child support orders face arrest and

potential incarceration to coerce compliance, subject to an ability to comply

hearing conducted pursuant to Rule 1:10-3 to determine the parents' ability to

pay their support obligations. Pasqua v. Council, 

186 N.J. 127

, 133 (2006).

Rule 5:7-5(a) authorizes the Probation Department, which is responsible for

monitoring and enforcing compliance with child support orders, to pursue

enforcement actions in accordance with Rule 1:10-3 on the litigant's behalf.

      "Those parents arrested on warrants for violating their support orders must

be brought before a court as soon as possible, but, in any event, within seventy -

two hours of their arrest." 

Pasqua, 186 N.J. at 153

.

            Prior to the ability to pay hearing, the Probation
            Department elicits information from the obligor to
            complete a questionnaire that provides the court with
            relevant facts such as: the obligor's residence status;
            whether support is paid on another case; the number of
            dependents; whether the mortgage or rent payment is
            current; employment status and history; any reason for
            unemployment and the length of unemployment; other
            sources of income such as general assistance, disability,
            or workers compensation; whether the obligor has
            medical insurance; the obligor's monthly expenses for
            housing, loans, support obligations, medical insurance,
            household utilities, and other household expenses; the
            value of assets; and details of the obligor's total debts,

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            including loan balances, medical debts, debts owed to
            other courts, credit card balances, and civil judgments
            owed.

            The trial court also addresses the obligor directly.
            [Administrative Office of the Courts (AOC) Directive
            #15-08] provides suggested inquiries to assist the court
            to clarify "inconsistent, inconclusive or ambiguous
            answers," determine why support has not been paid and
            how much the obligor can pay that day, and to ensure
            the obligor has a plan to address arrearages. Pursuant
            to [AOC Directive #02-14], the trial court is further
            required to make "specific factual findings regarding
            the obligor's ability to comply with the child support
            obligation" and, if coercive incarceration is ordered, the
            court's justification for ordering it.

            [Schochet v. Schochet, 

435 N.J. Super. 542

, 547 (App.
            Div. 2014) (first quoting Administrative Directive # 15-
            08, "Enforcement of Child Support Orders-Use of
            Warrant and Incarceration" (November 17, 2018); then
            quoting      Administrative      Directive      #02-14,
            "Probation/Family - Enforcement of Child Support- (1)
            Revised 'Orders for Relief to Litigant-Enforcement of
            Litigant Rights' and (2) Hearing to Determine Ability
            to Comply with Current Child Support Obligation"
            (April 14, 2014)).]

Additionally, "[a]t such hearings, courts must advise litigants in jeopardy of

losing their freedom of their right to counsel and, if indigent, of their right to

appointed counsel." 

Pasqua, 186 N.J. at 146

.

      Plaintiff, the obligor, and defendant, the obligee, have two children and

have engaged in extensive motion practice regarding child support and related


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                                        3
issues, including defendant's prior applications for coercive incarceration for

plaintiff's non-payment of support. In plaintiff's prior appeal, we affirmed the

entry of a child support judgment against plaintiff "in the amount of $51,028.89

as of July 2[], 2018" after plaintiff acknowledged that he was in arrears and "was

'an independent contractor,'" doing "'odd jobs,' including working as 'a security

guard,' 'a substitute teacher,' and a 'Lyft' driver." Pinckney v. Dery, No. A-6003-

17 (App. Div. May 28, 2020) (slip op. at 3).1

        On October 25, 2019, plaintiff was notified that a bench warrant was

issued for his arrest. Six days later, on October 31, 2019, plaintiff turned himself

in to the Somerset County Sheriff's Department.            The following day, on

November 1, 2019, plaintiff appeared from the county jail via video conference

before a Family Part judge for an ability to comply hearing. At the hearing, a

probation officer testified under oath that a bench warrant was issued on October

24, 2019, for support arrears. The officer testified that plaintiff's child support

obligation was $42 per week, plus $50 weekly for arrears. The officer explained

that plaintiff's total arrears were $57,526.18, consisting of "spousal support

arrears of $39,223.07" and "child support arrears [of] $18,303.11." The officer

testified that plaintiff had made payments of $10 on August 16, 2019; $22 on


1
    Plaintiff represented himself in the trial court and on appeal.
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                                          4
September 3, 2019; $5 on October 16, 2019; and $5 on October 31, 2019.

However, because plaintiff "[was] not meeting the full monthly obligation" and

"ha[d] a two missed payment stipulation,"2 the "warrant was issued."

Additionally, plaintiff "had one prior warrant to date."

      According to the officer, when plaintiff was asked whether there were any

medical issues preventing his employment, plaintiff responded that "he ha[d] no

medical issues" preventing him from working but "[did] not work" because his

pay would be "garnish[ed] up to [sixty-five percent]." The officer stated that

while plaintiff claimed "he [was] unemployed," he also indicated "on the

interview sheet that he [made] $800 per month" without disclosing the source of

the income.

      When asked by the judge whether he disputed the officer's testimony,

plaintiff responded that he did not. Plaintiff confirmed for the judge that he was

"[fifty-eight] years of age," had "never been hospitalized," and was "in good

physical condition." Plaintiff testified that he did "[o]dd jobs here and there

whenever [he could]," such as "[u]sing [his] van to take people around" or


2
   Under Rule 5:7-5(a), "[u]pon the accumulation of a support arrearage equal to
or in excess of the amount of support payable for [fourteen] days . . . , the
Probation Division shall file a verified statement setting forth the facts
establishing disobedience of the order or judgment" and "may then, on the
litigant's behalf, apply to the court for relief in accordance with [Rule] 1:10-3."
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                                        5
"help[ing people move] and stuff like that." Plaintiff also testified that he lived

with his brother who only "ask[ed him] for $50 a week" in rent, but plaintiff

wanted to pay $75 weekly. Plaintiff stated further that he did not receive "food

stamps" or any type of public assistance because he did not "believe in public

assistance."

      Plaintiff acknowledged that based on the current minimum wage, he could

earn a minimum of $400 per week in an entry level position.                 He also

acknowledged that he had previously earned $90,000 annually,3 but "was forced

out of work" because "the court ha[d] taken between [sixty-five] and [ninety-

nine] percent of [his] paycheck."         Plaintiff mused "[w]hat's the use of

working[,]. . . if I worked for $400 a week, child support would've knocked me

down to $100 a week. I can't support myself [on that]."

      Further, according to plaintiff, the $50 weekly arrears payment was

imposed without a hearing and was a "textbook bill of attainder, which [was]

illegal in the New Jersey and the U.S. constitution."         The judge dismissed

plaintiff's contention out of hand, stating "[t]hat's not a bill of attainder. And if



3
   Plaintiff's child support obligation was originally established in a March 1,
2012 order in the amount of $198 weekly, "payable by income withholding from
[plaintiff's] employer, Irvington Board of Education," where he earned "an
annual [net] salary of $80,171 as a teacher." Pinckney, slip op. at 1-2 n.1.
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you feel that you're unable to pay the $50 a week toward arrears, it's incumbent

upon you . . . to file a motion to modify the amount of your arrears payback."

      Next, plaintiff pontificated that "New Jersey law" required "both parents

. . . to pay child support, but . . . does not specify an amount." Therefore, plaintiff

believed he was "in compliance with New Jersey law" because he was "making

payments" he could afford when he could afford to make them. In any event,

plaintiff asserted that the enforcement hearing could not proceed because he had

filed an appeal challenging "this ridiculous[ly] high child support" and his

request for a stay of enforcement proceedings was pending.

      The judge promptly responded:

             Assuming for the sake of discussion that there is an
             active appeal that is before the Appellate Division,
             unless and until there's . . . an order of stay entered by
             the Appellate Division preventing enforcement of a
             child support and/or spousal support obligation at the
             trial level then [the] trial court . . . may proceed in the
             manner in which Probation is proceeding at this time.

See Kiernan v. Kiernan, 

355 N.J. Super. 89

, 91 (App. Div. 2002) ("[Rule 2:9-

1(a)] contemplates jurisdiction in the trial courts after an appeal is filed for

enforcement of orders and judgments or other actions that are specifically

authorized.").




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      The judge then determined "that given the fact that [plaintiff was] able-

bodied, [has] never been in a hospital, [is fifty-eight years old], and . . . at least

able to earn minimum wage" there was "no basis for [plaintiff] not to be paying,

in essence, $92 a week." In that regard, the judge made the following findings:

             I do not find you to be indigent. I do not find it
             necessary, nor appropriate, nor constitutionally
             required, State or federal, for an attorney to be
             appointed to represent you under the facts and
             circumstances of this case. You do have the ability to
             comply and pay.

                   You are in excellent physical and mental health,
             never being hospitalized at any time in [fifty-eight]
             years. And minimum wage is $10 an hour if you're
             working above the table and whatever you're earning
             below the table with regard to your . . . odd jobs and
             those circumstances.

                   Your rent obligation is, about, $50, although
             you'd like to pay $75 a week to your brother. You have
             a subsidized housing situation. And, . . . you're in a
             position financially where you can afford to pay $92 per
             week despite the fact that you owe $57,000 plus in
             arrears.

                   So, I'm going to follow the recommendation of
             [the probation officer]. I'm going to place a release
             amount of $1,000 on this matter. In the event you're
             not able . . . to make that amount, there will be an
             automatic review within [fourteen] days.




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The judge entered a memorializing order on November 1, 2019, indicating that

plaintiff had "the ability to work and make payments" but "willfully refuse[d] to

do so," requiring incarceration "to coerce compliance." This appeal followed.

      On appeal, defendant raises the following points for our consideration:

            ARGUMENT 1

            THE TRIAL COURT ERRED AS A MATTER OF
            LAW IN PROCEEDING IN ANY MANNER SINCE
            THE SUPERIOR COURT OF NEW JERSEY,
            FAMILY DIVISION, SOMERSET VICINAGE . . .
            DID NOT INFORM THE APPELLANT . . . THE
            REASON HE WAS BEING INCARCERATED PRIOR
            TO BEING ARRESTED.

            ARGUMENT 2

            THE TRIAL COURT ERRED AS A MATTER OF
            LAW IN PROCEEDING IN ANY MANNER SINCE
            THE SUPERIOR COURT OF NEW JERSEY,
            FAMILY DIVISION, SOMERSET VICINAGE . . .
            CUT OFF THE UNEMPLOYED APPELLANT . . .
            FROM SECURING AN ATTORNEY BEFORE THE
            HEARING DURING THE HEARING.

            ARGUMENT 3

            THE TRIAL COURT ERRED AS A MATTER OF
            LAW IN PROCEEDING IN ANY MANNER SINCE
            THE SUPERIOR COURT OF NEW JERSEY,
            FAMILY DIVISION, SOMERSET VICINAGE . . .
            DID NOT VERIFY IF THE APPELLANT . . . WAS
            SUBJECTED TO A CHILD SUPPORT PAYMENT
            STIPULATION JUSTIFYING A WARRANT FOR
            HIS ARREST.

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            ARGUMENT 4

            THE TRIAL COURT ERRED AS A MATTER OF
            LAW IN PROCEEDING IN ANY MANNER SINCE
            THE SUPERIOR COURT OF NEW JERSEY,
            FAMILY DIVISION, SOMERSET VICINAGE . . .
            DELIBERATELY APPLIED A 'FAILURE TO PAY
            CHILD SUPPORT' PUNISHMENT WHEN THE
            RECORD INDICATES THAT THE APPELLANT
            WAS ACTUALLY PAYING CHILD SUPPORT.

            ARGUMENT 5

            THE TRIAL COURT ERRED AS A MATTER OF
            LAW IN PROCEEDING IN ANY MANNER SINCE
            THE SUPERIOR COURT OF NEW JERSEY,
            FAMILY DIVISION, SOMERSET VICINAGE . . .
            DID NOT SEND ME, THE PAYOR, A COPY OF THE
            'ABILITY TO COMPLY' MOTION BY CERTIFIED
            MAIL.

      Considering the fact that defendant is no longer incarcerated, the issues

raised in this appeal would appear to be moot. See Greenfield v. N.J. Dep't of

Corrs., 

382 N.J. Super. 254

, 257-58 (App. Div. 2006) ("An issue is 'moot' when

the decision sought in a matter, when rendered, can have no practical effect on

the existing controversy.") (citation omitted); Betancourt v. Trinitas Hosp., 

415 N.J. Super. 301

, 311 (App. Div. 2010) ("Mootness is a threshold justiciability

determination rooted in the notion that judicial power is to be exercised only

when a party is immediately threatened with harm.").


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                                      10
      Assuming the issues are not moot, based on our review of the record and

the governing legal principles, we reject defendant's contentions that, in essence,

the enforcement hearing was procedurally or substantively deficient. "The Rule

1:10-3 hearing is not a plenary hearing to decide the appropriate amount of

support an obligor [should] pay. That amount has been determined, either by

the court following a trial or post-judgment motion, or by the parties

themselves." 

Schochet, 435 N.J. Super. at 548

. "The hearing is also not a

substitute for an appeal or a motion to modify the obligation based on changed

circumstances."

Ibid. Likewise, “[i]t does

not establish the future obligation of

the party paying support."

Ibid. “The hearing comes

about because an obligor has failed to comply with

an order."

Ibid. “The objective of

the hearing is simply to determine whether

that failure was excusable or willful, i.e., the obligor was able to pay and did

not."

Ibid. (citing Pasqua, 186

N.J. at 145). Thus, "[b]efore a court may order

the ultimate coercive means, incarceration, 'the court must find that the parent

was capable of providing the required support, but willfully refused to do so.'"

Id. at 549

(quoting 

Pasqua, 186 N.J. at 141

n.2). "If the court should determine

that the obligor paid what he or she was able to pay, no incarceration would be

warranted despite the accrual of arrears . . . ."

Id. at 550.

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      "The issue to be decided at an ability to comply hearing closely parallels

determinations Family Part judges make on a daily basis concerning the

evaluation of financial information provided through documents and testimony."

Ibid. “That experience gives

rise to the well-established deference paid to

factual findings Family Part judges make that are supported by the evidence,

deference that 'is especially appropriate "when the evidence is largely

testimonial and involves questions of credibility."'"

Id. at 551

(quoting

MacKinnon v. MacKinnon, 

191 N.J. 240

, 254 (2007)). "In particular, Family

Part judges are well versed in reviewing the good faith of litigants who fail to

meet their obligations in the full spectrum of post-judgment litigation."

Ibid. Here, contrary to

plaintiff's assertions, many of which are belied by the

record, plaintiff was afforded all the procedural protections he was due, and we

are satisfied that the proceedings complied with the dictates of Pasqua and its

progeny. Further, the judge carefully examined the facts and circumstances and

made thorough findings that are supported by the record. There is insufficient

merit in plaintiff's arguments to warrant further discussion in a written opinion.

R. 2:11-3(e)(1)(E).

      Affirmed.




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