On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Warren County, Docket No. FM-21-288-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals from that portion of the October 28, 2009 Family Part order finding her in violation of litigant's rights for failure to pay counsel fees to plaintiff's attorney, as defendant had previously agreed to do and in accordance with prior court orders. The October 28 order also denied defendant's cross-motion seeking more time to comply with the court's prior orders. The motion judge issued a tentative decision granting most of the relief sought by plaintiff and denying defendant's cross-motion. Defendant objected to the tentative decision. She requested oral argument and an ability to pay hearing. The court denied both requests. We reverse.
Defendant had previously agreed to pay $10,000 to plaintiff's attorney by withdrawing funds from her 401(k). However, her application to do so was denied by the plan administrator. As a result, she claimed she was unable to comply with the court's order. In denying defendant's cross-motion, the court stated:
[D]efendant originally agreed to pay the $10,000 from her retirement account to which the April 20, 2009 [o]rder was entered. She never filed a motion for reconsideration on the issue and only filed it in a cross-motion. The defendant never filed a motion until the plaintiff filed his own motion before she asks the [c]court to afford her more time to comply with the April 20, 2009 [o]rder. In her certification, defendant mentions her loan issues from the past to which defendant only mentioned to the [c]court previously that she had taken a loan to fund a lawsuit involving the parties and alleged that she is unable to take any more money out of the retirement account.
"[A] proceeding to enforce litigants' rights under Rule 1:10-3 is essentially a civil proceeding to coerce the defendant into compliance with the court's order for the benefit of the private litigant and incarceration may be ordered only if made contingent upon defendant's continuing failure to comply with the order." Pasqua v. Council, 186 N.J. 127, 140 (2006) (citation and internal quotation marks omitted). However, the party's failure to comply with a court's order must be willful before the court invokes the severe remedy of incarceration. Id. at 141 n.2 (citing Pierce v. Pierce, 122 N.J. Super. 359, 361 (App. Div. 1973)).
Unquestionably, defendant voluntarily agreed to withdraw funds from her 401(k) in order to comply with the court's order. The court, however, made no finding that defendant's failure to comply with the court's earlier orders was willful and that defendant had an ability to pay. Ibid.
Under these circumstances, we are convinced that prior to entering the order directing the issuance of a bench warrant for her arrest upon the filing of a certification of her non-compliance, the court should have conducted a hearing to determine whether defendant's failure to pay was willful and whether defendant has an ability to pay. Ibid.
Reversed and remanded for the court to conduct an ability to pay hearing. We do ...