TAMMY BARRON v. JEREMY CRUMP

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-3561-11T4

TAMMY BARRON,

Plaintiff-Respondent,

v.

JEREMY CRUMP,

Defendant-Appellant.

________________________________

CHRISTINA AVELLA,

Plaintiff-Respondent,

v.

JEREMY CRUMP,

Defendant-Appellant.

________________________________

March 14, 2014

Submitted February 4, 2014 Decided

Before Judges Fisher, Koblitz and O'Connor.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket Nos. FD-02-0076-03 and FM-02-0348-07.

Legal Services of New Jersey, attorneys for appellant (Mary M. McManus-Smith, Jo Anne T. Mantz and Melville D. Miller, Jr., on the brief).

Respondents have not filed briefs.

PER CURIAM

Jeremy Crump appeals from two February 21, 2012 orders remanding him to the Bergen County work release program pursuant to Rule 1:10-3for failure to pay child support. Although we dismiss this appeal as moot, we address several issues to assist the parties in the future.

Crump has three children with three different mothers, only two of whom are relevant to this appeal. Christina Avella and Crump's daughter was born in 2003. Crump was obligated to pay $123 per week in support and $30 a week toward arrears for this child. As of the February 21, 2012 hearing, the arrears for this child were $22,273.96. Tammy Barron and Crump's son was born in 1993 and is now emancipated. Crump was also ordered to pay $75 a week toward child support arrears for this child, which totaled $25,778.65 on the date of the hearing.

In September 2011, Crump was arrested pursuant to a bench warrant issued because of his failure to pay child support. Crump was remanded to the Bergen County jail, where he was ordered to remain on work release until he paid $3500. Crump satisfied this condition with the help of a friend.

On January 3, 2012, Crump appeared before a hearing officer for enforcement. See R. 5:25-3(b). The hearing officer wrote in an amended order relating to the Avella case,

Deft appeared on 1-3-12. Deft is beginning to star a business. Deft to conduct a job search and report to the probation Dept. on a weekly basis until he become employed. Deft states he has paid the ptlf directly. Deft and ptlf to provide a notorized letter to the probation dept as to the credit of direct payments. Order of support to continue. Deft can fax job search information direct to the Probation officer Mr Rapp at probation. Also a lump sum payment of 250 was ordered and due on 2-7-12 and any two missed payment Warrant status is is effective 1-25-12.[1]

After being arrested on a child support warrant, on February 21, 20122, he appeared before the judge who appointed a lawyer to represent Crump. Crump alleges in a certification that he was arrested on February 17, 2012 and that he was not afforded the opportunity to consult with his attorney before or after the hearing. A brief hearing was held in which Barron and Crump answered questions posed by the judge and a probation officer. Crump offered his own defense while assigned counsel stood by. Crump testified that he sustained a shoulder injury that requires surgery on both shoulders. In January 2012, Crump was approved for General Assistance benefits from Westwood Township in addition to assistance from Medicaid. He stated he was taking classes intended to prepare him for a job. Without making findings as to Crump's ability to pay, the judge issued two orders incarcerating Crump in the work release program with a condition of release on each payment of $2500. We granted emergent relief on February 29, 2012, staying incarceration pending appeal, but allowing all other enforcement measures to proceed.

Crump advances four arguments on appeal: that the evidence was insufficient to incarcerate him; that the trial court committed procedural errors; that he received ineffective assistance of counsel; and that this appeal is not moot.3

We dismiss this appeal as moot, but add pertinent comments because, as Crump points out, he is subject to rearrest and another ability-to-pay hearing in the future.

Crump argues that the trial court's failure to provide him with an opportunity to "call witnesses, conduct direct-examination, conduct cross-examination, or submit evidence" requires reversal. Crump also relies on AOC Directive #15-084 dated November 17, 2008 to argue that because the trial court failed "to elicit details in a systematic fashion" Crump was disadvantaged. The Directive provides sample questions for the judge to ask at an ability to pay hearing, including: demographic questions, such as name and address; questions regarding the current support order, such as the number of children and amount of support the obligor owes; what the obligor's living arrangement is; whether the obligor is employed or not; if the obligor receives medical coverage; if the obligor is disabled; and whether the obligor has any other income available, including pensions, worker's compensation, or income from financial holdings.

When an obligor falls two weeks or more behind in payments, Rule 5:7-5(a) directs the Probation Division to "file a verified statement setting forth the facts establishing disobedience of the order or judgment." The obligor may then be subject to a proceeding in aid of litigant's rights pursuant to Rule 1:10-3, which provides a civil remedy to litigants seeking relief for an unsatisfied order or judgment entered in their favor.

Rule 1:10-3 vests a court with the discretion to impose a number of measures to coerce an obligor into complying with his or her child support obligation, including "incarceration, with or without work release." R. 5:3-7(b).

"When the Probation Division moves to enforce a child support order pursuant to Rule 1:10-3, the [obligor] in arrears typically will receive notice to appear before a Child Support Hearing Officer, who is charged with the initial responsibility of enforcing the court's order." Pasqua v. Council, 186 N.J. 127, 141 n.2 (2006) (explaining the role of the Child Support Hearing Officer). Crump was called before the hearing officer resulting in the amended order of February 2, 2012. Thereafter, a warrant was issued for his arrest.

Once arrested pursuant to a warrant executed under Rule 1:10-3, an obligor must be brought before the court within seventy-two hours. Id. at 153. Our Supreme Court has recognized two prerequisites that must be established before an order requiring coercive incarceration can be entered. First, 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. Second, counsel must be provided if the individual facing incarceration is indigent. Id. at 146-47. Where a right to counsel exists, it includes the right to the effective assistance of counsel. State v. Fritz, 105 N.J. 42, 49-50 (1987). Effective counsel at a hearing takes an active role in the proceedings by asking questions, ensuring a full record of the obligor's efforts to gain employment and arguing forcefully for an alternative to incarceration.

The proceedings against Crump did not meet the standards and procedures required by the AOC Directive and the New Jersey Constitution.5 Crump, however, is no longer affected by this hearing. "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (internal quotation marks and citation omitted). We deem Crump's matters to be moot and dismiss.

1 We present this exactly as typed on the amended order of February 7, 2012, signed by the judge pursuant to Rule 5:25-3(d)(1).

2 Crump was arrested on a Friday and the following Monday was a court holiday. He was brought before the judge on the first court day following arrest.

3 He also alleges that the bench warrant in the Barron case was issued improperly. We do not address this issue as it is unlikely to recur.

4 Directive #15-08 is available to the public on the judiciary's website. http://www.judiciary.state.nj.us/directive/2008/dir_15_08.pdf (last visited February 27, 2014). Administrative directives have the force of law. R.K. v. D.L., 434 N.J. Super. 113, 130 n.7 (App. Div. 2014).

5 The United States Supreme Court did not find the same right to counsel in the United States Constitution. Turner v. Rogers, __ U.S. __, __, 131 S. Ct. 2507, 2518-20, 180 L. Ed. 2d 452, 465-66 (2011).