Halpern, Crahay and Ackerman. The opinion of the court was delivered by Ackerman, J.A.D.
[133 NJSuper Page 192] Appellant asserts two points on this appeal. The first is that the Juvenile and Domestic Relations Court had no power or authority, in proceedings pursuant to R. 1:10-5 to enforce litigant's rights under a support order granted under the Poor Law (N.J.S.A. 44:1-143 et seq.) to place him on probation. The second point is that he was denied his rights of due process in the proceedings to enforce litigant's rights because he was not advised of his
right to counsel and he was also not advised of his privilege against self-incrimination under the Fifth Amendment.
A full outline of all the proceedings below is not necessary. In October 1968 appellant was ordered by the Juvenile and Domestic Relations Court, on complaint of the Essex County Welfare Board, to pay $40 a week through the Essex County Probation Office for the support of his wife and three children. He failed to comply and a proceeding to enforce litigant's rights was instituted. After a lapse of 1 1/2 years he was finally arrested and a hearing was held on October 8, 1971, at which time an order was entered reciting that he had been tried for nonsupport and suspending sentence on the condition that he be placed on probation for three years and, in addition to the conditions of probation set forth in N.J.S.A. 2A:168-2, that he pay $25 a week support through the probation office.
A second proceeding to enforce litigant's rights was subsequently commenced because of appellant's defaults. On October 31, 1972, after he had been arrested and another hearing held, an order was entered vacating arrears, increasing weekly support to $35 and "continuing probation."
He continued to fail to fully comply and in October 1973 he was again arrested and charged with violation of probation. He was provided with counsel and on November 28, 1973 a hearing was held before the late Judge Kenarik. At that hearing appellant asserted that the order of October 8, 1971, placing him on probation was invalid on the ground that probation cannot be imposed in a proceeding to enforce litigant's rights which is essentially civil in nature.
In a comprehensive oral opinion Judge Kenarik ruled that the 1971 order imposing probation was valid and proper. He entered a new order dated November 28, 1973, finding that appellant was guilty of violation of probation because of (1) failure to report to the probation officer as required by the conditions of probation, and (2) failure to make support payments. He concluded that appellant, who acknowledged that he had worked steadily for 17 years for the same employer
and had earned between $120 and $130 net a week during the period covered by the support orders, had the ability to pay and had no excuse for noncompliance. Although the judge recognized that appellant could be placed in jail until he complied with prior orders or promised to comply, he suspended sentence and continued probation. He further ordered that appellant should pay $35 a week support plus $10 arrears. This appeal followed.
It is apparent from the above that we have before us the typical case, so often faced by the juvenile and Domestic Relations Court, of a man who willfully fails to support his family over a period of years, forcing them to require everincreasing assistance from public funds, and who makes sporadic contributions to support only because of court compulsion.
Appellant's main ground for appeal, as indicated above, is that the court lacked power to place him on probation. Although the appeal is from the order of November 28, 1973, it is also a challenge to the validity of the order of October 8, 1971. One may argue, as the respondent does here, that, having failed to take a timely appeal from the earlier order, appellant is foreclosed from questioning it. See Lathrop v. Lathrop, 57 N.J. Super. 532, 537 (App. Div. 1959); Quagliato v. Bodner, 115 N.J. Super. 133 (App. Div. 1971). However, since a timely appeal has been taken from the later order, which was necessarily predicated on the earlier order, we think that essential fairness mandates consideration of the manner in which the final result was reached and we pass to the merits.
The gravamen of appellant's argument is that probation is available only in criminal matters where punitive sanctions are permitted. He contends that probation subjects one to a curtailment of liberty and that one on probation is made to "feel like a criminal." It is claimed that probation is an alternative to a jail sentence, which is normally suspended but may be revived if the conditions of probation are violated, and it is argued that since a fixed jail sentence can never be
imposed in a proceeding to enforce litigant's rights and no imprisonment at all may be ordered if a defendant lacks ability to pay, probation is not appropriate because the threat of imprisonment for a fixed term on violation is lacking. He claims that the decision in New Jersey Department of Health v. Roselle, 34 N.J. 331 (1961), which emphasized the differences between contempt proceedings and those to enforce litigant's rights, supports his arguments.
We find that his contentions, rejected below, lack merit. Although we affirm essentially for the reasons stated by Judge Kenarik in his opinion below, we think it appropriate, since the basic powers and everyday practices of the Juvenile and Domestic Relations Court in imposing probation in support cases are involved, to make some additional comments.
There is no doubt that there is a vast difference between a contempt proceeding under R. 1:10-2 to 4 and a proceeding to enforce litigant's rights under R. 1:10-5. The latter is essentially a civil proceeding to coerce the defendant into compliance with the court's order for the benefit of the private litigant. In such proceeding the judge, before ordering any sanction, must determine that defendant has the ability to comply with the order which he has violated, and incarceration may be ordered only if made contingent upon defendant's continuing failure to comply with the order. Release must be available immediately upon defendant's compliance. Defendant may not be sentenced to a specific jail term. A contempt proceeding, on the other hand, is essentially criminal and punitive in nature. Its purpose is to punish defendant in the public interest for failure to comply with the order and it may be instituted only by the court. Defendant is entitled to counsel and other safeguards appropriate to criminal proceedings. A fixed jail sentence may be imposed. See New Jersey Department of Health v. Roselle, supra; In re Carton, 48 N.J. 9 (1966); In re Reeves, 60 N.J. 504 (1972); Pierce v. Pierce, 122 N.J. Super. 359 (App. Div. 1973).
Because of the criminal aspects of contempt and the fact that a fixed jail term may be meted out, the right to place a defendant on probation and to impose the conditions of probation specified in N.J.S.A. 2A:168-2 has never been questioned in contempt proceedings. In re Ruth M. Buehrer et al, 50 N.J. 501 (1967). We deem it clear that probation may also be used in civil proceedings to enforce litigant's rights under R. 1:10-5.
In the ordinary case, where the court order which is the subject of enforcement proceedings pursuant to R. 1:10-5 involves only the performance of a single act, confinement until there is performance is the best solution and the imposition of probation is not a useful alternative. The same does not apply where the order of the court requires continuing performance -- this is particularly true where the orders involved are support orders. Where the order is a continuing one and enforcement is contingent upon the ability to comply, which normally requires that defendant continue to work and earn money, incarceration will often serve only to remove his ability to perform. This does not solve the problems which his family has and serves only to increase the burden on the public since it frequently happens, as here, that there are related problems of administration of public assistance and welfare payment programs. See Buchanan v. Essex Cty. Welfare Bd., 117 N.J. Super. 541 (App. Div. 1971). Probation, despite the problems of enforcement if its conditions are violated, is a viable and practical alternative to coerce the defendant's continued compliance. It is preferable to imprisonment if it works.
Although there may be erroneous impressions to the contrary because the term "probation" is associated by most persons with criminal matters, the probation office in each county does not serve only in the criminal field. It is an arm of the state judicial system. It performs investigations and collects monies from the courts in both civil and criminal matters. For many years, in ...