ROBIN PARNESS-LIPSON v. MARTIN S. PARNESS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2221-13T2

ROBIN PARNESS-LIPSON,

Plaintiff-Respondent,

v.

MARTIN S. PARNESS,

Defendant-Appellant.

___________________________

June 6, 2014

Submitted May 28, 2014 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FM-07-8088-91.

Martin S. Parness, appellant pro se.

Pitman Mindas Grossman Lee and Moore, attorneys for respondent (Bruce M. Pitman, on the brief).

PER CURIAM

Martin S. Parness has been imprisoned in the Essex County Jail for five years, based on his failure to pay a matrimonial judgment in favor of his former wife, plaintiff Robin Parness-Lipson, as well as his alleged failure to take steps that would allow plaintiff to collect the judgment in Israel, where defendant and his current wife own real estate. His most recent Matthei hearing1 on June 25, 2013, resulted in defendant's continued incarceration, and by order dated November 1, 2013, the trial court denied defendant's motion for reconsideration.

After filing this appeal from the November 1, 2013 order, defendant filed a motion with this court for the appointment of appellate counsel as an indigent. However, upon reviewing the transcripts of the June 25, 2013 Matthei hearing, and the November 1, 2013 hearing on defendant's reconsideration motion, we conclude that the court denied defendant the hearing Matthei contemplates. Hence we have determined to summarily remand this case to the trial court for a new hearing.2 We also conclude that defendant should be represented by appointed counsel at the hearing.

Because we are ordering a new Matthei hearing, the immediate issue before us is whether defendant is entitled to the appointment of counsel, solely for the purpose of representing him at that hearing. As the court held in Matthei:

An individual committed for civil contempt has the right to periodic review so that it can be determined whether circumstances have changed. The burden of proving the change of circumstances is upon the individual seeking release. In order to maintain logical parallels between ca. sa. incarcerations and those for civil contempt, we hold also that an evidentiary hearing must be held no less frequently than 18 months after the last hearing, the maximum term that may be imposed for criminal contempt under N.J.S.A. 2C:29-9a and 2C:43-6a(4), or sooner upon a prima facie showing by the party subject to the order that circumstances have changed. The purpose of the hearing is to determine whether the finances of the incarcerated party have diminished to so material a degree as to render it impossible, as a practical matter, for him to discharge his judgment obligations in whole or in part. It is not the attitude of the party that controls, but the availability of his material means.

[Id. at 529 (citation omitted) (emphasis added).]

By way of background, the underlying debt, which is the current source of defendant's incarceration, was determined in a two-week post-judgment bench trial held in 2011, at which defendant was represented by counsel. The reasons for the trial court's April 26, 2011 order and the July 11, 2011 judgment, were explained in Judge James G. Troiano's lengthy April 25, 2011 written opinion. Defendant failed to pursue his appeal from those orders. As a result, his appeal was dismissed by order dated January 23, 2012, and his petition for certification was likewise dismissed by order dated March 28, 2013. Therefore, the underlying judgment setting the debt is final in every sense of the word.

To be clear, defendant owes the money and is legally obligated to comply with the judgment and with collateral court orders requiring him to cooperate with plaintiff's efforts to collect the judgment. The question at a Matthei hearing is whether he has the ability to pay or to make efforts to facilitate payment. See Schochet v. Schochet, ___ N.J. Super. ___, ___ (App. Div. 2014) (slip op. at 9-12).

It appears from the transcripts of the most recent Matthei hearing, held on June 25, 2013, and the hearing on defendant's reconsideration motion, held on November 1, 2013,3 that defendant has no intention of paying the judgment. He stated on the record that, even if he had the money, he would not pay his ex-wife a penny. However, he also staunchly maintained that he did not, in fact, have the ability to pay the judgment. As held in Matthei, the issue is not defendant's attitude, but his ability to comply with the applicable court orders which he has been imprisoned for violating. Matthei, supra, 327 N.J. Super. at 529. That is the key issue at the periodic review hearings required by Matthei.

As made clear in Anyanwu v. Anyanwu, 339 N.J. Super. 278, 289 (App. Div. 2001), the Matthei review proceedings are to be evidentiary hearings, at which each side has the right to present live testimony and introduce documents in evidence. A hearing that consists solely of oral argument is inadequate. Ibid. In this case, the June and November hearings largely consisted of verbal sparring between the assigned judge and defendant, with defendant insisting that the prior judgment was the product of a conspiracy between his attorney, the court, and virtually anyone else associated with the case, and the judge trying to impress on defendant that his arguments were beside the point.

Defendant was not represented by counsel. He contended that whatever assets he had were encumbered and that he had no liquid assets, or assets capable of being liquidated, with which to pay an attorney. The judge expressed the view that a decision to declare defendant indigent for purposes of the assignment of counsel would be tantamount to a determination that he was also unable to pay the judgment, thus automatically requiring his release. However, those are separate determinations. Indeed, this case illustrates the potential distinction.

Defendant and his current wife apparently own at least three pieces of real estate in Israel. It appears that the properties are mortgaged. In a June 25, 2013 order, the trial court gave plaintiff power of attorney to list and sell the real estate and to collect any rents the tenants may be paying. Therefore, while defendant has assets in Israel (the real estate) which may be sold to pay the judgment, he may not have assets or cash in the United States with which to pay an attorney to represent him at a Matthei hearing. It is doubtful that any attorney would accept an interest in mortgaged and judgment-liened Israeli property in lieu of a fee.

At the June 25, 2013 hearing, both plaintiff's counsel and the court referred to the power of attorney as the key that could open the jailhouse door for defendant. Unless there is evidence that defendant has other assets, beyond the real estate in Israel, or that he could take some other affirmative steps to enable plaintiff to collect the judgment, it is unclear what further purpose is served by incarcerating him. Again, the critical issue is not his uncooperative attitude, but his ability to comply. See Matthei, supra, 327 N.J. Super. at 529. We do not raise these points as a comment on the merits of the next Matthei hearing. Rather, they illustrate our view that it is important for defendant to be represented by counsel so that the hearing can be focused on relevant issues, instead of devolving into a verbal sparring match between defendant and the court over side issues. Further, the presence of counsel on both sides might foster a resolution of the long-festering litigation.

Based on the record before us, we conclude that, solely for purposes of appointment of counsel at the Matthei hearing, defendant should be deemed indigent. His Israeli assets have been effectively tied up as a result of the power of attorney, and it is not clear that he has funds in the United States with which to pay an attorney. Lastly, because the issue is whether defendant should continue to be incarcerated, and he has been in jail for five years, we choose to err on the side of caution. Hence, we remand this matter to the trial court with direction to appoint counsel to represent defendant. It may be appropriate to use the same process that would be employed to appoint counsel for an indigent defendant in a child support enforcement proceeding. See Pasqua v. Council, 186 N.J. 127 (2006).

We emphasize that the decision to appoint counsel has no impact whatever on the ultimate determination as to whether defendant can pay the judgment or cooperate with plaintiff's efforts to collect it. That is an entirely different issue. Further, because defendant has no further right to challenge the underlying judgment, appointed counsel will have no obligation to raise issues aimed at re-litigating the judgment. See Schochet v. Schochet, supra, slip op. at 9-10. The issue is not what defendant owes, but whether he can pay some or all of what he owes, or at least whether he can perform some specific act that the court has ordered him to perform to facilitate plaintiff's collection of what he owes. Ultimately, the issue is whether defendant's incarceration has become punitive or whether it still serves a coercive purpose.

Remanded. We do not retain jurisdiction.

1 Marshall v. Matthei, 327 N.J. Super. 512, 529 (App. Div. 2000), requires that a hearing be held at least every eighteen months to determine whether a defendant should continue to be incarcerated. Although the parties did not provide us with a copy, they agree that by order dated December 6, 2012, the Supreme Court remanded this case to the trial court to conduct a Matthei hearing. Apparently that hearing was not held until June 25, 2013.

2 The practical effect of our order is to provide defendant with his next Matthei hearing sooner than it might otherwise be held.

3 Those hearings were not held before Judge Troiano.