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HOW TO ENFORCE A COURT ORDER IN NEW JERSEY
TABLE OF CONTENTS
TABLE OF CONTENTS
The power of a court to enforce its orders is beyond question, and the particular manner in which compliance may be sought is left to the sound discretion of the Court. [Board of Educ., Tp. of Middletown v. Middletown Tp. Educ. Ass’n, 352 N.J. Super. 501, 508 (Ch. Div. 2001).]
VIOLATION OF LITIGANT’S RIGHTS
The most common method of seeking enforcement of a Court Order is to file a motion seeking to hold the opposing party in violation of litigant’s rights under Court Rule 1:10-3. [R. 1:10-3.]
To learn more about how to file a motion, please read here: [MNJD Guide to Motions.]
“When a motion is filed for enforcement or modification of a prior order or judgment, a copy of the order or judgment sought to be enforced or modified shall be appended to the pleading filed in support of the motion.” [R. 5:5-4(a).]
Court Rule 1:10-3 provides “a mechanism, coercive in nature, to afford relief to a litigant who has not received what a Court Order or Judgment entitles that litigant to receive.” [D’Atria v. D’Atria, 242 N.J. Super. 392, 407 (Ch. Div. 1990).]
“The scope of relief in a motion in aid of litigants’ rights is limited to remediation of the violation of a court order.” [Abbott v. Burke, 206 N.J. 332, 371 (2011).]
“[A] litigant typically does not have standing to assert the rights of third parties.” [Abbott v. Burke, 206 N.J. 332, 371 (2011).]
Orders entered pursuant to Rule 1:10-3 are “coercive measures by a court to force compliance by a recalcitrant party.” [D’Atria v. D’Atria, 242 N.J. Super. 392, 405 (Ch. Div. 1990).]
The particular method of relief given “ought to be carefully tailored and sometimes issued in a particular sequence–from least to most drastic.” [Board of Educ., Tp. of Middletown v. Middleton Tp. Educ. Ass’n., 352 N.J. Super. 501, 509 (Ch. Div. 2001).]
The goal of an order issued under Court Rule 1:10-3 is to sufficiently “sting” the offending party in order to compel compliance. [Board of Educ., Tp. of Middletown v. Middleton Tp. Educ. Ass’n., 352 N.J. Super. 501, 511 (Ch. Div. 2001).]
“Relief under R. 1:10-3, whether it be the imposition of incarceration or a sanction, is not for the purpose of punishment, but as a coercive measure to facilitate the enforcement of the court order.” [Ridley v. Dennison, 298 N.J. Super. 373, 381 (App. Div. 1997).]
WILLFUL VIOLATION NOT NECESSARY FOR ENFORCEMENT
When the relief sought is merely enforcement of a Court Order, there is no “willfulness” requirement.
“Rule 1:10-3 is, at bottom, a device to enable a litigant to enforce his or her rights. … The focus being on the vindication of litigants’ rights, relief sought pursuant to Rule 1:10-3 does not necessarily require establishing that the violator of an order acted with intention to disobey. Indeed, courts have recognized that demonstration of a mens rea, willful disobedience and lack of concern for the order of the court, is necessary for a finding of contempt, but irrelevant in a proceeding designed simply to enforce a judgment on a litigant’s behalf. In sum, then, although punitive or coercive relief under the Rule cannot be used against one who is not a willful violator of a judgment, that does not foreclose the vindication of litigants’ rights through other forms of non-punitive and non-coercive orders entered pursuant to Rule 1:10-3’s authority enabling the enforcement of rights.” [In re Adoption of N.J.A.C. 5:96, 221 N.J. 1, 17-19, 25 (2015).]
An application for enforcement “should not be refused merely because the violation was not willful.” [N.J. Dept. of Health v. Roselle, 34 N.J. 331, 347 (1961).]
A finding of willful disobedience of the Court Order is “irrelevant in a proceeding designed simply to enforce a judgment on a litigant’s behalf.” [Lusardi v. Curtis Point Prop. Owners Assn., 138 N.J. Super. 44, 49 (App. Div. 1975).]
INCARCERATION AS REMEDY
The Court can impose any remedy deemed just and equitable. The most common sanction to compel compliance is a monetary sanction, but the Court also has available the sanction of incarceration.
“Experience demonstrates that incarceration will more quickly generate compliance[,]” and the Court can impose incarceration as the first remedy when it finds that doing so is appropriate under the circumstances. [Board of Educ., Tp. of Middletown v. Middleton Tp. Educ. Ass’n., 352 N.J. Super. 501, 509-11 (Ch. Div. 2001).]
Because relief is designed to be coercive and not punitive, when applying for enforcement of a Court Order under Rule 1:10-3, incarceration cannot be for a set period of time, it has to end when the party complies with the Court Order being enforced. [Pierce v. Pierce, 122 N.J. Super. 359 (App. Div. 1973).]
Once it appears that the commitment has lost its coercive power, the legal justification for it ends and further confinement cannot be tolerated.'” In re Acceturo, 242 N.J.Super. 281, 287, 576 A.2d 900 (App.Div.1990) (quoting Catena v. Seidl, 65 N.J.257, 262, 321 A.2d 225 (1974) (Catena I)). The test for whether commitment should be continued is whether there is a “substantial likelihood that [it]… would accomplish the purpose of the order upon which the commitment was based.” [Catena v. Seidl, 65 N.J. 257, 262 (1974).]
“No hard and fast rule can be formulated and no fixed period of time set.” [Catena v. Seidl, 65 N.J. 257, 262 (1974).] “[T]he critical question is whether or not further confinement will serve any coercive purpose.” [Catena v. Seidl, 68 N.J. 224, 229, 343 A.2d 744 (1975).] The burden of showing that the incarceration has lost its coercive effect and has become punitive is on the party who is incarcerated. [In re Acceturo, 242 N.J. Super. 281, 287 (App. Div. 1990).]
The length of incarceration “should not be limited or delimited by a term, but should depend for its length on the continuation of noncompliance.” [Pierce v. Pierce, 122 N.J. Super. 359, 360 (App. Div. 1973).] In such circumstances, “the key to the jail is in the prisoner’s pocket, that key being compliance with the order.” [Pierce v. Pierce, 122 N.J. Super. 359, 360 (App. Div. 1973).]
“In determining whether incarceration is punitive rather than coercive, a court must bear in mind a party’s willful behavior. It is to counter such willful conduct that courts have inherent power to incarcerate to enforce compliance with their lawful orders. The power would come to nothing if a defiant judgment debtor were able to secure his release by boldly and continuously asserting that he will never discharge his judgment-based obligations notwithstanding a finding that he has the capacity to do so.” [Marshall v. Marshall, 322 N.J. Super. 512, 528 (App. Div. 2000).]
REIMBURSEMENT OF COUNSEL FEES INCURRED SEEKING ENFORCEMENT OF COURT ORDER
In addition to a monetary sanctions to compel compliance, Rule 1:10-3 states that “[t]he court in its discretion may make an allowance for counsel fees to be paid by any party to the action to a party accorded relief under this rule.” [R. 1:10-3.]
An award of counsel fees under this rule, however, is only available to a party that has obtained relief. [Jersey City Redevelopment Agency v. Clean-O-Mat Corp., 289 N.J. Super. 381 (App. Div. 1996).]
Further, the Court cannot grant fees to a party who successfully enforces a settlement agreement; rather, the Rule only applies to violations of orders and judgments. [Haynoski v. Haynoski, 264 N.J. Super. 408 (App. Div. 1993).] It is worth noting, however, that most Judgments of Divorce include a provision requiring both parties to comply with their settlement agreement, if a settlement agreement exists. Including such a provision makes applicable the provisions of Court Rule 1:10-3 and permits the award of counsel fees.
CONTEMPT OF COURT
CONTEMPT VS. VIOLATION OF LITIGANT’S RIGHTS. There is a clear distinction between violation of litigant’s rights under Rule 1:10-3 and contempt of court under Rule 1:10-2. The former, violation of litigant’s rights (as discussed above), is designed to be coercive. The latter, contempt of court, is a punitive remedy designed to punish the violator. [N.J. Department of Health v. Roselle, 34 N.J. 331, 339 (1961).]
“The word ‘contempt’ signifies a public offense. It refers to a contempt of Government; there is no such thing as a contempt of a litigant. The expression ‘criminal contempt’ is as redundant as ‘criminal crime'[.]” [N.J. Department of Health v. Roselle, 34 N.J. 331, 340 (1961).] Please note, subsequent to the Supreme Court’s decision in N.J. Department of Health v. Roselle, the Rules of Court were amended to more clearly distinguish between contempt under Rule 1:10-1 and Rule 1:10-2 and violations of litigant’s rights under Rule 1:10-3.
“A person is guilty of a crime of the fourth degree if he purposely or knowingly disobeys a judicial order … or hinders, obstructs or impedes the effectuation of a judicial order or the exercise of jurisdiction over any person, thing or controversy by a court, administrative body or investigative entity.” [N.J.S.A. 2C:29-9(a).]
Indeed, the contempt power is so serious an invocation that “a prosecution for contempt may not be instituted upon the mere notice of motion by a litigant to the alleged offender. Except where the court has given oral notice in open court or by an order for arrest, the notice may be given only by an order to show cause. On the other hand, a litigant’s application for supplemental relief in his own interest may be made by motion on notice to the opposing party.” [N.J. Department of Health v. Roselle, 34 N.J. 331, 343 (1961).]
“The contempt process is everywhere acknowledged to be harsh because of its summary nature and the many roles the court plays in the proceeding. The power should be used sparingly. A litigant should not be permitted to invoke the criminal process as a thumbscrew to achieve a private result. A judge should be alert to this possible misuse and should guard against it in deciding whether and when a criminal prosecution should be instituted.” [N.J. Department of Health v. Roselle, 34 N.J. 331, 343 (1961).]
Contempt is not designed to enforce a Court Order or the private rights of a litigant; it is designed to punish for disobeying the authority of the Court. “The power of any court of this state to punish for contempt shall not be construed to extend to any case except the:
- Misbehavior of any person in the actual presence of the court;
- Misbehavior of any officer of the court in his official transactions; and
- Disobedience or resistance by any court officer, or by any party, juror, witness or any person whatsoever to any lawful writ, process, judgment, order, or command of the court.” [N.J.S.A. 2A:10-1.]
CONTEMPT IN PRESENCE OF COURT. The Court can punish for contempt that occurs directly in its presence under Rule 1:10-1, which provides as follows: “A judge conducting a judicial proceeding may adjudicate contempt summarily without an order to show cause if:
- the conduct has obstructed, or if continued would obstruct, the proceeding;
- the conduct occurred in the actual presence of the judge, and was actually seen or heard by the judge;
- the character of the conduct or its continuation after an appropriate warning unmistakably demonstrates its willfulness;
- immediate adjudication is necessary to permit the proceeding to continue in an orderly and proper manner; and
- the judge has afforded the alleged contemnor an immediate opportunity to respond.” [R. 1:10-1.]
CONTEMPT OUTSIDE PRESENCE OF COURT. When contempt occurs outside the presence of the Court, however, it must be instituted by Order to Show Cause issued by the Court and a number of procedural requirements are triggered. The Rules of Court require as follows:
“(a) Institution of Proceedings. Every summary proceeding to punish for contempt other than proceedings under R. 1:10-1 shall be on notice and instituted only by the court upon an order for arrest or an order to show cause specifying the acts or omissions alleged to have been contumacious. The proceedings shall be captioned ‘In the Matter of ______ Charged with Contempt of Court.’
(b) Release Pending Hearings. A person charged with contempt under R. 1:10-2 shall be released on his or her own recognizance pending the hearing unless the judge determines that bail is reasonably necessary to assure appearance. The amount and sufficiency of bail shall be reviewable by a single judge of the Appellate Division.
(c) Prosecution and Trial. A proceeding under R. 1:10-2 may be prosecuted on behalf of the court only by the Attorney General, the County Prosecutor of the county or, where the court for good cause designates an attorney, then by the attorney so designated. The matter shall not be heard by the judge who instituted the prosecution if the appearance of objectivity requires trial by another judge. Unless there is a right to a trial by jury, the court in its discretion may try the matter without a jury. If there is an adjudication of contempt, the provisions of R. 1:10-1 as to stay of execution of sentence shall apply.” [R. 1:10-2.]
ENFORCEMENT OF SUPPORT ORDERS
ENFORCEMENT OF CUSTODY ORDERS
Various court rules, statutes, and criminal charges are applicable to violations of custody orders. Please refer to the section of this Guide dedicated to custody, where the subject of enforcement is more fully addressed: [MNJD Guide to Custody.]
ENFORCEMENT OF DISCOVERY OBLIGATIONS & ORDERS
Various court rules are applicable to violations of discovery obligations and orders. Please refer to the section of this Guide dedicated to discovery (which means the process of exchanging information relevant to the litigation), where the subject of enforcement is more fully addressed: [MNJD Guide to Discovery.]
ENFORCEMENT OF SETTLEMENT AGREEMENTS
Andrew M. Shaw is the author of My New Jersey Divorce and a divorce and family attorney with the DeTommaso Law Group in Somerville, New Jersey. CLICK HERE to schedule a consultation.
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ASSOCIATIONS & MEMBERSHIPS:
- New Jersey State Bar Association – Family Law Section
- New Jersey State Bar Association – Young Lawyers Division
- Somerset County Family Law Practice Committee
- MENSA International
- New Jersey State Bar
- U.S. District Court for the District of New Jersey