NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3601-13T2

ARIEL SCHOCHET,

Plaintiff-Appellant,

v.

SHARONA SCHOCHET

(n/k/a GROSSBERG),

Defendant-Respondent.

________________________________________________________________

Submitted February 28, 2014 - Decided

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 

APPROVED FOR PUBLICATION

April 23, 2014

APPELLATE DIVISION

April 23, 2014
2 A-3601-13T2

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 highpaying 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).
3 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-yetunidentified 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 
4 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)
5 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)
6 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). 
7 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 
8 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.
9 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 
10 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.
11 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 
12 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 
13 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 wellestablished 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 
14 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.