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Scalchi v. Scalchi

February 07, 2002

LINDA K. SCALCHI, PLAINTIFF-RESPONDENT
v.
FRANK SCALCHI, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Chancery Division -Family Part, Morris County, 14-9-00.

Before Judges Newman, Fall and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

As amended March 6, 2002.

LINDA K. SCALCHI, PLAINTIFF-RESPONDENT
v.
FRANK SCALCHI, DEFENDANT-APPELLANT

On appeal from the Superior Court of New Jersey, Chancery Division -Family Part, Morris County, 14-9-00.

Frank Scalchi, appellant pro se. Respondent has not filed a brief.

Before Judges Newman, Fall and Axelrad.

The opinion of the court was delivered by: Axelrad, J.T.C. (temporarily assigned).

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: January 24, 2002

Defendant, Frank Scalchi, appeals from an order entered in an enforcement hearing resulting from an arrears for child and spousal support. At the hearing, defendant asserted he was indigent and was entitled to appointment of counsel. He claimed that he faced incarceration at some point due to his significant arrearages and, therefore, should constitutionally be entitled to a lawyer. Judge John J. Harper, a Family Part judge, denied defendant's request by order dated March 26, 2001. Defendant raises the same claim on appeal.

Defendant's claim has no merit. R. 2:11-3(e)(1)(E). The judge sufficiently addressed defendant's request and denied it, concluding that there was no authority in this State in a civil proceeding for a right to counsel. In doing so, he noted that the monies due for child and spousal support were to be paid through the Morris County Probation Department pursuant to an October l4, 1999 order entered in the domestic violence matter because of the final restraining order in effect against defendant. Therefore, that department was a proper party to initiate these enforcement proceedings.

The judge explained how a support enforcement proceeding under Rule 5:7-5 works and how it is different from a criminal matter. Where there is a failure to pay support in New Jersey, a warrant may be used to bring the party into court. Before a defendant can actually be incarcerated, however, a hearing must be held to determine if the defendant has the ability to pay and is presently capable of complying with the order. Saltzman v. Saltzman, 290 N.J. Super. 117 (App. Div. l996). If a court determines, based on the evidence adduced at the hearing, including defendant's testimony, that a defendant has the ability to pay but is unwilling to do so, incarceration may be ordered as a coercive means to require payment, but not as a punitive measure.

In a criminal matter, "judgment must be a finite sentence, whereas if the proceeding is civil, incarceration ends when the need for coercion ceases, i.e., upon defendant's compliance with the order." Department of Health v. Roselle, 34 N.J. 331, 339 (1961) (discussing the distinction between civil contempt and criminal contempt proceedings). We have made the ...


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