NJ appellate court extends right to counsel to civil contempt review proceedings

06/01/2014, Litigation, Child Support Enforcement (Civil Contempt)

In Parness-Lipson v. Parness, 2014 WL 2533783 (N.J. App. 2014) (unpublished), a litigant had been incarcerated for some period of time for failure to pay child support. Previously, the appellate court had held that incarcerated contemnors have a right to periodic hearings called "Matthei hearings", but the Parness-Lipson court found that the Matthei hearing held in this case was inadequate because it was not an evidentiary hearing, but rather one done solely through oral testimony. This problem, the court held, was worsened by the fact that the contemnor lacked counsel and so the hearing devolved into a shouting match between the contemnor and the court. Also, the trial judge had refused to appoint counsel because "a decision to declare defendant indigent for purposes of the assignment of counsel would be tantamount to a determination that he was also unable to pay the judgment, thus automatically requiring his release."  But the appellate court noted that indigence for appointment of counsel and inability to pay child support are separate determinations (particularly in this case, where the contemnor had possible out-of-country assets that might be usable eventually to satisfy child support but were unlikely to be available to pay an attorney). The court concluded:

 

Based on the record before us, we conclude that, solely for purposes of appointment of counsel at the Matthei hearing, defendant should be deemed indigent. His Israeli assets have been effectively tied up as a result of the power of attorney, and it is not clear that he has funds in the United States with which to pay an attorney. Lastly, because the issue is whether defendant should continue to be incarcerated, and he has been in jail for five years, we choose to err on the side of caution. Hence, we remand this matter to the trial court with direction to appoint counsel to represent defendant. It may be appropriate to use the same process that would be employed to appoint counsel for an indigent defendant in a child support enforcement proceeding. See Pasqua v. Council, 186 N.J. 127 (2006).