The issue before this court is whether a party to a matrimonial action may be incarcerated for willful noncompliance with a court order to pay the fees of a court-appointed expert. This court holds that the party may be imprisoned, without violation of constitutional rights, until such time as the order has been satisfied.
Plaintiff-wife filed for divorce on November 12, 1986, after a 12-year marriage. By way of a pendente lite order entered June 26, 1987, a certified public accountant was appointed to examine the business and personal books and records of defendant-husband
for purposes of establishing a clear and concise financial picture. A full forensic investigation took place, encompassing 65 hours of the accountant's and his staff's time. The participation of the expert led to the full resolution of the matter after a settlement conference at the courthouse on October 20, 1988. The property settlement agreement memorializing this accord was signed on April 13, 1989, and the divorce action was heard unopposed on May 11, 1989.
It must first be made clear that there is not now, nor has there ever been, any question of defendant's ability to pay his share of the costs of the litigation, including his agreement made at the final hearing to pay one-half of the accountant's fees.
On August 30, 1989, defendant's attorney was ordered to produce his client before the court for the imposition of sanctions, which might include incarceration, for the non-payment of his one-half share of the accountant's fee pursuant to the property settlement agreement. Numerous phone calls and correspondence followed, clearly communicating that the purpose of the court's actions was to compel compliance rather than to punish for the lack thereof.
In September 1989, for the first time, defendant requested an itemized bill from the accountant, delineating the dates, hours and substance of the services rendered. The court postponed the sanction hearing in order for the invoice to be provided, but due to a change of address, defendant did not receive it until December 1989. Defendant continued to question the amount of the bill and this court continued to be patient while a settlement was supposedly being made.
On March 14, 1990, another hearing was ordered and again adjourned. Defendant claimed to have reconciled the amount of the bill and the terms of payment and the court was informed the total would be reduced by an agreed figure, as long as one-third of the bill was paid immediately, one-third by April 29 and the balance by May 29, 1990, more than one year
after the divorce action was heard. However, no monies were paid and on April 18, the court again ordered defendant's attorney to produce his client, advising that immediate sanctions would be imposed unless one of the following was accomplished: (1) payment be made in full; (2) the full amount plus $1000, for costs and counsel fees, be deposited with the court, pending a plenary hearing to determine the reasonableness of the bill; or (3) a signed alternate agreement be presented.
Defendant produced such an agreement to the court on April 25, but again failed to comply with its very terms. Thus, an order for arrest was issued on May 1, 1990. The condition for release was the payment to the court-appointed expert pursuant to prior court order. Defendant, accordingly, holds the key to the jail.
Citizens of this State are protected from imprisonment for debt "in any action, or on any judgment founded upon contract, unless in cases of fraud." N.J. Const. of 1947, art. I, para. 13. The purpose of this provision is to insure that honest citizens not be incarcerated by virtue of their inability to pay debts. Perry v. Orr, 35 N.J.L. 295 (Sup.Ct.1871); Note, "Civil ...