                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                         SUPERIOR COURT OF NEW JERSEY
                                         APPELLATE DIVISION
                                         DOCKET NO. A-3601-13T2

ARIEL SCHOCHET,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                                   April 23, 2014
v.
                                                 APPELLATE DIVISION
SHARONA SCHOCHET
(n/k/a GROSSBERG),

     Defendant-Respondent.
________________________________________________________________

           Submitted February 28, 2014 - Decided April 23, 2014

           Before Judges Fisher, Espinosa and Koblitz.

           On appeal from Superior Court of New Jersey,
           Chancery   Division,  Family   Part,  Bergen
           County, Docket No. FM-02-223-11.

           Mark Musella (Mason & Musella), attorney for
           appellant.

           Kantrowitz, Goldhamer & Graifman, P.C.,
           attorneys   for   respondent (William T.
           Schiffman, on the brief).

     The opinion of the court was delivered by

ESPINOSA, J.A.D.

     We granted plaintiff's application to seek emergent relief

from an order that denied his request for the appointment of

experts   at   public   expense   to   testify    at   an   ability   to   pay
hearing1 conducted pursuant to Rule 1:10-3.       Relying upon Pasqua

v. Council, 186 N.J. 127 (2006), he argues that such appointment

is   constitutionally   required       because   he   faces   possible

incarceration if the trial court finds he willfully failed to

pay his support obligations.       For the reasons that follow, we

conclude he has failed to show that the appointment of experts

at public expense is constitutionally required in this case.

     The facts and procedural history, as represented by the

parties, can be summarized as follows:

     Plaintiff Ariel Schochet was a portfolio manager at several

hedge funds before "the market collapse in 2007."         However, he

dates the downturn in his income to several years later, the

year before the parties' 2012 divorce, when he lost a high-

paying job. He states that, since then, he has been unable to

duplicate that level of income.

     The Amended Judgment of Divorce required plaintiff to pay

weekly amounts of $1500 for alimony and $390 for child support.

Later orders required the payment of $50 per week toward arrears




1
  This hearing is now more aptly called an "ability to comply
hearing" as set forth in Directive #02-14, (the 2014 Directive)
issued by the Administrative Office of the Courts on April 14,
2014,   and   available    at   http://www.judiciary.state.nj.us/
directive/2014/dir_02_14.pdf (last visited April 15, 2014).




                                   2                          A-3601-13T2
and increased the child support based upon a cost of living

adjustment.

      Plaintiff represents that he now earns $600 per week.                       He

states that, as of February 2014, his arrears were approximately

$250,000 and continue to increase by almost $1500 per week.

      Plaintiff was first incarcerated for non-support in August

2013.      His incarceration was stayed by the Supreme Court in

October 2013.       By order dated November 7, 2013, the trial court:

denied plaintiff's request that he be granted leave to proceed

as   an    indigent;    appointed     counsel   to    represent      him   for    an

ability to pay hearing and "for future filings and hearings on

that issue that may result in incarceration"; granted his motion

for the adjournment of his ability to pay hearing; and scheduled

the hearing for November 12, 2013.              The ability to pay hearing

was further adjourned and scheduled for February 4, 2014.

      On    January    31,    2014,   less    than     one    week   before      the

scheduled     hearing,      plaintiff's     counsel    wrote    to   the    Bergen

County Counsel and requested that the County retain David B.

Stein,     Ph.D.,      an    employability      expert,       and    an    as-yet-

unidentified     certified     public     accountant    for    plaintiff.         He

stated:

             Both experts are needed to testify as to Mr.
             Schochet's   employability  and   his  past,
             present and future earnings, income, job
             placement and his current ability to pay



                                        3                                  A-3601-13T2
            child   support.     It   is  necessary and
            essential to our case and to the issue of
            Mr. Schochet's current ability to pay child
            support that we retain these experts.

       His requests were rejected by Bergen County Counsel and

denied by the trial court by order dated February 6, 2014.                       An

ability   to   pay    hearing    commenced     in    February    2014   and     was

adjourned to April 30, 2014, in part, to permit the trial court

to consider the results of plaintiff's ninety-day review by his

current employer.

       Plaintiff submitted an application for leave to file an

emergent motion allowing him to appeal from the trial court's

order denying his request.           As defendant correctly points out,

this   order   is    interlocutory.         Nonetheless,    we   exercise       our

discretion to grant leave to appeal from the February 6, 2014

order in the interest of justice, R. 2:2-4, and now affirm the

trial court's order.

       In Pasqua v. Council, supra, the Supreme Court held that

"the   appointment     of   counsel    to    assist    parents   found     to   be

indigent and facing incarceration at child support enforcement

hearings"   was     mandated    by   both   the     Fourteenth   Amendment      Due

Process Clause of the United States Constitution2 and the New


2
    The United States Supreme Court has since held that the
appointment of counsel in such proceedings is not automatically
required by the United States Constitution.   Turner v. Rogers,
                                                    (continued)


                                        4                                A-3601-13T2
Jersey    Constitution,       Article    I,     Paragraph   1.       Id.    at    146.

Plaintiff argues that Pasqua also requires the appointment of

experts to testify at his ability to pay hearing.                   We disagree.

     The    2014    Directive     regarding       the   enforcement        of    child

support orders identifies two issues a trial court must decide

when an obligor is taken into custody on a child support-related

warrant.3    First, the trial court must determine "whether the

obligor     is     indigent     for      representation        purposes."        2014

Directive, supra, at 2.           Then, the trial court must "make a

second finding as to the obligor's ability to comply with the

current child support obligation, that is, a finding as to the

obligor's 'ability to pay.'"            Ibid.

     As a preliminary matter, there has been no finding that

plaintiff   is     indigent.      He    represents      that   he    is    currently

employed, earning $600 per week.4                  Moreover, although           Pasqua



(continued)
___ U.S. ___, ___, 131 S. Ct. 2507, 2520, 180 L. Ed. 2d 452, 466
(2011).
3
  Directives have the force of law.                  R.K. v. D.L., 434 N.J.
Super. 113, 130 n.7 (App. Div. 2014).
4
   The 2014 poverty guideline for New Jersey ranges from $11,670
for a one-person household to $40,090 for an eight-person
household.   U.S. Dep't of Health & Human Servs., 2014 Poverty
Guidelines, available at http://aspe.hhs.gov/poverty/14poverty.
cfm (last visited April 11, 2014). Plaintiff contends that his
income is less than 125% of the federal poverty guidelines
because he should not be considered a one-person household in
                                                     (continued)


                                         5                                  A-3601-13T2
requires      the    appointment      of     counsel       for     indigent      obligors

because they face the possibility of incarceration, ibid., it is

silent   as    to     other    services      that    must    be     provided          to   the

indigent obligor to protect his or her constitutional rights.

     Central to the Court's ruling in Pasqua was its concern

that, "[w]hen an indigent litigant is forced to proceed at an

ability-to-pay hearing without counsel, there is a high risk of

an erroneous determination and wrongful incarceration."                           Pasqua,

supra,   186    N.J.    at    145.      Plaintiff      has       failed    to    show      any

increased risk of an erroneous determination if his requested

relief is denied.

     Directive        #15-08,    (the       2008    Directive)5       issued      by       the

Administrative        Office    of    the    Courts    on        November       17,    2008,

includes forms that detail the extensive inquiry associated with

an enforcement hearing, including the Probation Child Support

Enforcement         Obligor    Questionnaire,         CN     10819        (the    Obligor

Questionnaire), and the checklist of questions to be asked at

the enforcement hearing, CN 11212.



(continued)
light of the fact that               his wages are garnished to pay his
support obligation. He               does not identify the number of
dependents he claims.
5
  Directive #15-08 is available at http://www.judiciary.state.
nj.us/directive/2008/dir_15_08.pdf (last visited April 11, 2014).




                                            6                                     A-3601-13T2
       Prior   to    the    ability        to    pay    hearing,       the   Probation

Department elicits information from the obligor to complete a

questionnaire that provides the court with relevant facts such

as: the obligor's residence status; whether support is paid on

another case; the number of dependents; whether the mortgage or

rent   payment      is   current;    employment         status   and    history;    any

reason for unemployment and the length of unemployment; other

sources of income such as general assistance, disability, or

workers compensation; whether the obligor has medical insurance;

the    obligor's     monthly    expenses         for    housing,   loans,     support

obligations, medical insurance, household utilities, and other

household expenses; the value of assets; and details of the

obligor's total debts, including loan balances, medical debts,

debts owed to other courts, credit card balances, and civil

judgments owed.

       The trial court also addresses the obligor directly.                         The

2008 Directive provides suggested inquiries to assist the court

to clarify "inconsistent, inconclusive or ambiguous answers,"

determine why support has not been paid and how much the obligor

can pay that day, and to ensure the obligor has a plan to

address   arrearages.          See   id.    at    23.      Pursuant     to   the   2014

Directive, the trial court is further required to make "specific

factual findings regarding the obligor's ability to comply with




                                            7                                 A-3601-13T2
the child support obligation" and, if coercive incarceration is

ordered,   the    court's     justification       for    ordering   it.     2014

Directive, supra, at 2-3;            see also id. at 5-7 (Revised Form

promulgated by Directive #02-14, CN 11213).

    The information provided by the Obligor Questionnaire and

the court's further questioning can reasonably be expected to

provide the trial court with sufficient information to make the

required   determination      in   all     but   the    extraordinary     case. 6

Although   not   addressing    the    adequacy     of   the   information     and

inquiry conducted pursuant to the 2008 Directive, plaintiff's

argument presumes its insufficiency.             In support of this motion,

plaintiff's counsel states:

           In order to show that he is unable to secure
           [a   job   paying   enough   to   cover   his
           obligation], the Plaintiff has prepared
           hundreds of pages of employment search
           documents which show the evidence of his
           search within and outside his primary field.

                To make a proper determination, the
           court will need to examine the evidence
           presented and evaluate if the Plaintiff has
           made an appropriate job search commensurate
           with his history and experience.  I believe
           that for the court to make this evaluation,
           the specifics of the employability of the
           Plaintiff are sufficiently complex that in
           order for a just decision to be made, an
           expert is needed that would qualify the

6
   It hardly bears noting that the case in which the financial
information for an indigent obligor would be so complex as to
require expert testimony will be extraordinary indeed.



                                       8                                A-3601-13T2
            Plaintiff's employability           and    provide   an
            independent analysis.

                 . . . Without the expert testimony, the
            Court   will   be   asked   to   make   this
            determination without the proper foundation
            as to the specifics of Plaintiff's area of
            expertise and how the marketability for such
            services has materially changed in the past
            nine years.

    Plaintiff      has    identified       no   documents   other     than   the

"hundreds of pages of employment search documents" that require

expert analysis.     In relying upon the fact that similar expert

testimony is frequently admitted in Family Court, he blurs the

very real distinction between the issue decided at an ability to

comply   hearing    and    that   decided       when   similar   evidence     is

considered at a plenary hearing.

    The Rule 1:10-3 hearing is not a plenary hearing to decide

the appropriate amount of support an obligor should pay.                     That

amount has been determined, either by the court following a

trial or post-judgment motion, or by the parties themselves.

The hearing is also not a substitute for an appeal or a motion

to modify the obligation based on changed circumstances.                     The

hearing comes about because an obligor has failed to comply with

an order.    The objective of the hearing is simply to determine

whether that failure was excusable or willful, i.e., the obligor

was able to pay and did not.               See Pasqua, supra, 186 N.J. at




                                       9                               A-3601-13T2
145.     It does not establish the future obligation of the party

paying support.7

       The Supreme Court has observed that the purpose of the Rule

1:10-3 proceeding is "to coerce the defendant into compliance

with the court's order for the benefit of the private litigant."

Id. at 140 (quoting Essex Cnty. Welfare Bd. v. Perkins, 133 N.J.

Super.    189,    195   (App.    Div.),     certif.   denied,   68    N.J.   161

(1975)).    Before a court may order the ultimate coercive means,

incarceration, "the court must find that the parent was capable

of providing the required support, but willfully refused to do

so."     Id. at 141 n.2; see also Milne v. Goldenberg, 428 N.J.

Super. 184, 198 (App. Div. 2012).            Because incarceration "may be

ordered    only   if    made    contingent    upon    defendant's    continuing

failure to comply with the order," Pasqua, supra, 186 N.J. at

140, the obligor is said to "possess[] the keys to the jailhouse

door."    See id. at 145.

       An example helps to illustrate the difference between the

two hearings.      Let us assume an obligor with an annual income of

$100,000 is ordered to pay weekly child support of $350 for two

children.     The obligor subsequently loses that employment and

finds a job that pays $60,000 per year.                  If the trial court

7
  The 2014 Directive observes, "In most situations, modifications
of the child support obligation should occur as part of a
separate filing." Id. at 3.



                                       10                              A-3601-13T2
finds   he     or    she   has      made     a    prima      facie    case        of    changed

circumstances        and   holds      a    plenary        hearing,     the        court       will

evaluate the "potential earning capacity of an individual" to

determine      an    appropriate      support         obligation.           See    Caplan       v.

Caplan, 364 N.J. Super. 68, 88-89 (App. Div. 2003) (quoting

Halliwell v. Halliwell, 326 N.J. Super. 442, 448 (App. Div.

1999)), aff'd, 182 N.J. 250 (2005).                     That evaluation may result

in    the    imputation       of    income       to   the     obligor       if     the     judge

concludes that he or she "is, without just cause, voluntarily

underemployed         or   unemployed."               Child     Support           Guidelines,

Pressler and Verniero, Current N.J. Court Rules, Appendix IX-A

at 2589 (2014) ("Imputing Income to Parents").                               The Appendix

provides guidance on the manner in which such income should be

imputed.      Ibid.

       The review of employment search evidence in an ability to

comply hearing has a far more limited purpose: to determine

whether the failure to pay was willful.                              Let us assume the

matter comes to court for enforcement of the $350 support order

pursuant to Rule 1:10-3 because the obligor has paid only $250

per   week    and     arrears      have    accumulated.         The     court          will   not

determine whether $250 per week is the appropriate level of

support; it will determine what amount of the $350 court-ordered

support      the    obligor     was   able       to   pay.     If     the    court       should




                                             11                                         A-3601-13T2
determine that the obligor paid what he or she was able to pay,

no    incarceration         would    be   warranted        despite      the     accrual       of

arrears and the fact that the amount of support is unchanged.

See   2008    Directive,       supra,      at    8    (stating     that,      in      ordering

coercive incarceration, "it is essential that the court at the

hearing      find    the    obligor       has   an    ability      to     pay    an     amount

acceptable to the court"); see also Pierce v. Pierce, 122 N.J.

Super. 359, 361 (App. Div. 1973) (reversing an order entered

following an ability to pay hearing and stating, "[N]owhere is

demonstrated in the record before us the ability of defendant to

comply with the order sought to be enforced by the coercive

remedy.").          As a result, the judge conducting an ability to

comply     hearing      will        generally        not    need     to    delve       beyond

determining whether the obligor has made a good faith effort to

secure a reasonable level of employment.

       Moreover, although plaintiff states he would retain such

experts      himself    if    not     indigent,       the    admissibility            of    such

testimony remains subject to N.J.R.E. 702.                         Expert testimony is

admitted     when     the    subject      matter      is   "beyond      the     ken    of    the

average    [factfinder],"           DeHanes     v.    Rothman,      158    N.J.       90,    100

(1999), and "will assist the trier of fact to understand the

evidence or to determine a fact in issue." N.J.R.E. 702.                                      No




                                            12                                        A-3601-13T2
showing has been made here that the subject matter of the expert

testimony sought is beyond the ken of a Family Part judge.

      The issue to be decided at an ability to comply hearing

closely parallels determinations Family Part judges make on a

daily basis concerning the evaluation of financial information

provided through documents and testimony, generally without any

expert testimony.         In attempting to achieve a fair resolution of

the economic issues of parties going through the emotionally

charged     process      of    divorce,          judges    review     testimony,       case

information       statements         and    other    financial        information,      and

necessarily make assessments of the parties' needs, wants, and

ability to fund costs.               That experience gives rise to the well-

established       deference      paid       to    factual       findings     Family    Part

judges     make   that    are    supported          by    the    evidence,     Cesare    v.

Cesare,     154    N.J.       394,     412-13       (1998),      deference     that     "is

especially appropriate 'when the evidence is largely testimonial

and   involves       questions         of        credibility.'"            MacKinnon     v.

MacKinnon, 191 N.J. 240, 254 (2007) (quoting Cesare, supra, 154

N.J. at 412).

      In    particular,        Family       Part    judges      are   well    versed     in

reviewing the good faith of litigants who fail to meet their

obligations in the full spectrum of post-judgment litigation.

For example, in Milne, the former wife appealed from an order




                                             13                                  A-3601-13T2
that imposed community service hours upon her as a means of

coercing her to comply with past orders regarding the payment of

a joint federal income tax liability.              The trial court observed

that the former wife "had 'a significant amount of money . . .

[at] her disposal, while she was not complying with these court

orders'" and had "intentionally 'prioritize[d]' her funds and

ignored the obligation."           Milne, supra, 428 N.J. Super. at 199

(alterations in original).           Accordingly, the trial court found

her    "non-compliance       was     deliberately        designed    to      delay

satisfaction of the obligation" and concluded "her failure to

pay was willful."       Ibid.

      In sum, even in the absence of a finding of indigence,

plaintiff      has   been   afforded    legal    representation      at    public

expense.       He has failed to show that the expert evidence he

seeks is necessary to avert an enhanced "risk of an erroneous

determination and wrongful incarceration," Pasqua, supra, 186

N.J. at 145, or even that such expert evidence would assist the

trier of fact to evaluate evidence of a kind routinely reviewed

by    Family    Part   judges.         We    therefore    conclude   that       the

appointment of experts was not constitutionally required under

the facts of this case.

      Affirmed.




                                        14                                A-3601-13T2
