Submitted: November 10, 1999 - Decided: January 26, 2000
Before Judges Stern, Kestin and Wefing.
On appeal from the Superior Court of New Jersey,
Law Division, Civil Part, Essex County.
Alpert Butler & Sanders, attorneys for respondent
(A-4385-98 and A-4386-98)/appellant (A-7026-98)
(Clark E. Alpert, of counsel and, with David N.
Butler and Matthew J. Rice, on the briefs).
Warren Matthei, appellant (A-4385-98 and A-4386-98)/
respondent (A-7026-98) prose.
The opinion of the court was delivered by
These three appeals are before us on leave granted. We
consolidate them for the purposes of this opinion. All arise from
the same civil matter filed in March 1993. The complaint in two
counts embodied a claim for the value of professional services
rendered. In February 1992, defendant, Warren D. Matthei, had
retained plaintiff, Ellen C. Marshall, an attorney at law, to
represent him in a Union County matrimonial proceeding. The amount
claimed due in Marshall's suit was the $76,558.30 balance owing on
her fee for services rendered through the divorce trial, until
August 16, 1992, and in connection with a substitution of attorneys
thereafter. A default judgment was entered on April 20, 1995, for
the amount claimed plus costs, including those connected with
service of process in England where defendant was residing at the
time. The total of the judgment was $85,553.87.
The judgment of divorce in the underlying matrimonial matter
had been entered on November 12, 1992, following a twenty-three day
trial. That judgment, interalia, required Matthei to pay $50,000
per year toward the support of his three children, and $100,000 per
year in alimony to his former spouse. On the basis of a
determination that the proceeds of a wrongful termination claim by
Matthei against his former employer might be subject to equitable
distribution, the judgment required Matthei to keep his former
spouse informed of the progress of negotiations, and enjoined him
from disposing of the settlement proceeds until the court could
make a definitive equitable distribution determination. A prior
order had required Matthei to deposit any settlement proceeds with
the court, subject to equitable distribution. Matthei appealed
from the judgment of divorce, but that appeal was dismissed on
March 10, 1994, on the former spouse's unopposed motion based on
the argument that Matthei had "lied to the court, perjured himself,
and defrauded the court and the [former spouse]" in respect of the
Settlement of the wrongful termination claim had occurred on
April 15, 1993. In a July 22, 1993 certification filed with the
court, however, Matthei denied that any settlement had transpired
or that he had received any funds from his former employer on
account of his claim.
In October 1993, Matthei moved to England. In January 1994,
he stopped paying alimony and child support, and a bench warrant
was issued on that basis. On August 12, 1996, Matthei was arrested
on the bench warrant as he attempted to re-enter the United States.
After a hearing on August 13, 1996, Judge Melvin S. Whitken entered
an order for Matthei's incarceration by reason of his failure to
discharge his child support and alimony obligations, pending his
compliance or a determination that he lacked the ability to pay.
Judge Whitken held an ability-to-pay hearing on August 29 and
September 5, 1996, and rendered a decision on that issue on
September 13, 1996. He found that Matthei had received $2.74
million from the settlement after taxes, and was delinquent in his
child support and alimony obligations in the sum of $296,350. The
judge recounted in detail how Matthei had disposed of the proceeds
of the settlement by expenditure, investment and payment over to
his new wife,See footnote 11 and found that Matthei had the ability to pay the
child support and alimony ordered. Based on R. 1:10-3, Matthei's
continued incarceration was ordered pending payment of child
support and alimony arrearages and the posting of $1.4 million to
guarantee payment of the former spouse's equitable distribution
claim regarding the settlement. Contempt of court charges were
referred to the Union County Prosecutor's Office.
On September 23, 1996, Marshall filed an application for
issuance of a writ of capiasadsatisfaciendum (writ or ca.sa.) in
respect of her judgment in this matter. At the hearing on the
application, on October 10, 1996, Judge Kenneth R. Stein held
Matthei to be collaterally estopped from relitigating the issues
previously adjudicated by Judge Whitken. Judge Stein found that
Matthei had conveyed his property with the intent to defraud
creditors, and was refusing to apply available assets in payment of
Marshall's judgment. See 2A:17-78; seealso 2A:15-42.
Accordingly, Judge Stein issued the writ.
Matthei did not seek appellate review of either Judge
Whitken's R. 1:10-3 order of September 13, 1996, or Judge Stein's
issuance of the ca.sa. on October 10, 1996. Matthei made a number
of prose procedural applications to the trial court, including
some seeking consolidation of the matrimonial matter and this
action, or dismissal of the ca.sa. on entire controversy grounds.
All these applications were denied.
Almost two years later, on August 7, 1998, Judge Whitken
determined that continued incarceration in the matrimonial matter
would be punitive rather than coercive because "continued
incarceration is not going to produce" the approximate value of the
matrimonial judgment. On August 28, 1998, Judge Whitken, interalia, ordered Matthei's release contingent upon payment to his
former spouse of $20,000, the estimated value of books which
Matthei had acknowledged he owned. The order provided, however,
that it would "not [operate to] release [Matthei] from
incarceration imposed under any presently pending criminal matter
or other civil matters, such as but not limited to, any capias
Judge Whitken held another hearing on December 11, 1998. He
then issued an order releasing Matthei from his R. 1:10-3
incarceration without any payment in the matrimonial matter on the
basis that continued incarceration would be punitive rather than
coercive. Matthei was remanded, however, "pursuant to any other
detainers or other orders in other civil or criminal matters which
still require his incarceration."
On December 17, 1998, Judge Stein held a hearing on Matthei's
motion to dismiss the ca.sa. in this matter on the ground that it
had no coercive effect and had become punitive in nature. Some
testimony was taken from Matthei concerning his assets. Matthei
argued that the ability-to-pay determination in the matrimonial
matter should not have been given collateral estoppel effect, and
that he should be able to show he did not fraudulently transfer his
assets. He noted that his wife in England had recently divorced
him and, as he had not seen the divorce judgment, "[t]hey could
have taken everything away from me." He sought dismissal of the
writ because "it was granted without any competent evidence," and
he asked that the court hold another hearing.
On January 21, 1999, Judge Stein denied Matthei's motion to
dismiss the ca.sa. He determined that the writ had not "ceased to
serve its coercive purpose and . . . become punitive[;]" noting
also that Matthei remained incarcerated on criminal charges, and
dismissal of the writ would not release Matthei from his
incarceration regarding those charges. In A-4386-98, Matthei
appeals from the order of January 21, 1999.
In September 1998, Matthei had filed a petition for a writ of
habeas corpus in the United States District Court for the District
of New Jersey. On December 2, 1998, that petition was dismissed
without prejudice by consent "for failure to exhaust state court
remedies." On December 4, 1998, Matthei filed a habeas corpus
petition in the Superior Court of New Jersey. That petition was
denied by Judge Stein in an order entered on February 16, 1999. In
a letter opinion, Judge Stein held, pursuant to N.J.S.A. 2A:67-14,
that Matthei was not entitled to habeas corpus relief because he
had not exhausted remedies available to him in the courts
of this State nor has he shown that such remedies are or
will be ineffective to protect his rights.
* * * *
Further, Mr. Matthei has not sought his release under
N.J.S.A. 2A:20-1 etseq. by "in effect," assigning his
property for the benefit of his creditors.
In A-4385-98, Matthei appeals from the order of February 16, 1999.
For the purposes of completing the factual picture to this
juncture, we note the existence of a State criminal matter in
respect of which the record before us is incomplete. The Union
County Prosecutor had filed criminal charges against Matthei in
connection with the concealment of assets in the matrimonial
matter. Matthei had been incarcerated on those charges as of early
February 1997. Eventually, those charges were disposed of pursuant
to plea agreement and, after pleading guilty to reduced charges,
Matthei was, in early August 1999, released from jail on account of
the state criminal proceedings. He continued to be held on the
writ in this matter, however.
On August 5, 1999, Judge Stein, suasponte upon learning that
Matthei was no longer incarcerated on the criminal charges, held
another hearing on the writ in this matter. When the judge
endeavored to focus on Matthei's ability to pay and the question of
whether the writ had exhausted its coercive potential and had
become punitive instead, Matthei summarized his position by
stating: "I have nothing further to say other than to further
confirm I will not pay Ms. Marshall any money anymore th[a]n I paid
my ex-wife the money and will remain incarcerated as long as that
takes, and . . . that's my firm conviction and view." Judge Stein
noted there had been no showing "that there is no substantial
likelihood that a commitment pursuant to the writ only will
accomplish the purpose of the writ." The incarceration was
continued, subject to Matthei's position in the matter.
Another hearing was held on August 17, 1999, also on the
court's own motion. No testimony was taken, but the court heard
argument from Matthei and from counsel on Marshall's behalf. At
the conclusion of the hearing, Judge Stein rendered a decision
orally. In reviewing the procedural history of the related matters
bearing upon Matthei's incarceration, Judge Stein noted:
The history of Mr. Matthei's incarceration for the
various reasons has clearly demonstrated his refusal to
make any payment to obtain his release.
* * * *
I was advised that at some point during his
incarceration on the criminal proceeding that there was
a bail reduction with a cash alternative that would allow
him to have been released, I think, on a payment of
$4,000 or [$]5,000 in cash. I say all that because. . .
what that demonstrates is Mr. Matthei's refusal, if you
will, to budge where arrest was at stake and is at stake
in the present case, or where payment of less money
tha[n] is sought here would have achieved his release.
The test applicable, of course, is the Court has to
decide when the continued incarceration will be punitive
rather than coercive. Now, Mr. Matthei says at times
that he benefits from his stay in the various penal
institutions or jails, but nonetheless - - and in a word
leads us to believe that it is not punitive. But I
believe the . . . question is whether there is a
likelihood that further confinement will serve any
coercive purpose and cause him to pay the plaintiff or
make assets available for payment.
. . . I am satisfied that there is no substantial
likelihood that further confinement is going to serve any
coercive purpose, and is going to cause Mr. Matthei
either to pay Ms. Marshall or to make assets available
for payment. All of this is not, of course, to . . .
condone Mr. Matthei's actions. I realize that there may
be a difference in his feelings towards his wife and his
family as opposed to his feelings toward Ms. Marshall,
but I'm satisfied that my ruling is appropriate whether
he holds some animus toward Ms. Marshall or whether
. . . his feelings towards Ms. Marshall are less or more
hostile then his feeling towards his wife and family.
And it appears to me at this point that given the
history, that the further confinement is not going to
cause a coercive purpose. And so I'm prepared to issue
an order releasing Mr. Matthei.
On Marshall's application, Judge Stein stayed the order
releasing Matthei until the end of the following day to afford
Marshall an opportunity to make an emergent application to us for
a further stay and other relief. On August 18, 1999, we granted
Marshall's motion for leave to appeal "on an emergent, expedited
basis," and stayed Matthei's release pending further order. We
also ordered production of the transcript of the August 17
proceeding on an expedited basis and required an answering brief
and appendix from Matthei within seven days after receiving the
transcript.See footnote 22 Marshall's appeal from the trial court's order
discharging the ca.sa. and directing Matthei's release from
incarceration is the third of these consolidated matters, under
docket no. A-7026-98.
After our order of August 18, 1999 was entered, we received a
series of lettersSee footnote 33 from Matthei declining to participate in this
appeal and even requesting
an indeterminate stay of Judge Stein's Order of the 17th
August, 1999 releasing defendant-respondent from
incarceration pursuant to that court's writ of capiasadsatisfaciendum, for a continuation of this Court's Order
of the 18th August, 1999 as continued in the Order of
this Court dated the 24th August, 1999 (filed the 26th
August, 1999) and for an amendment of the Scheduling
Order dated the 27th August, 1999 of the Hon. Sylvia B.
Pressler, [P.J.A.D.] to reflect the foregoing.
Defendant-respondent may seek relief in the federal
courts in the intervening time and undertakes hereby to
keep informed this Court, trial court Judge Stein and
plaintiff-appellant as to significant developments, if
any, in this respect.
Also by way of completing the relevant factual context of the
issues before us, we note information supplied by Marshall's
counsel that on August 20, 1999, two days after our initial order
in the matter, the United States Marshal filed a detainer for
Matthei based upon a criminal complaint against him in the United
States District Court for the Eastern District of Pennsylvania. We
have since been advised that sometime in mid-December 1999, Matthei
was moved, on an order to produce, to federal custody at Fort Dix,
New Jersey, pending trial on that criminal complaint.
We deal first with the appeal in A-4385-98, the denial of
Matthei's petition for a writ of habeas corpus. After reviewing
the record in the light of the arguments advanced by the parties,
we are in substantial agreement with the reasons Judge Stein
articulated for denying the petition. The arguments Matthei makes
in this regard are without merit, including his reliance in this
civil matter on R. 3:22, which governs petitions for post
conviction relief, a remedy available in criminal matters. R.
2:11-3(e)(1)(E). Accordingly, in A-4385-98, we affirm.
To the extent the issues raised in Matthei's appeal from the
trial court's denial of his motion to dismiss the ca.sa., A-4386
98, have any value independent of those raised in Marshall's appeal
from the order granting Matthei's eventual release, A-7206-98, we
likewise affirm. The factual issues before the court on Matthei's
application for dismissal of the ca.sa. were essentially the same
as those litigated in the matrimonial proceeding more than two
years earlier, resulting in Matthei's incarceration for failure to
discharge other obligations, i.e., for child support and alimony,
which had also been reduced to judgment. Having failed to file a
timely appeal from the issuance of that order in the matrimonial
matter, Matthei was precluded from relitigating the underlying
issues. Slowinski v. Valley Nat'l Bank,
264 N.J. Super. 172, 179
(App. Div. 1993) (recognizing that "where there is an unreversed
decision of a question of law or fact made during the course of
litigation, such decision settles that question for all subsequent
stages of the suit" (quoting State v. Hale,
127 N.J. Super. 407,
410 (App. Div. 1974))); seealsoLanzet v. Greenberg,
126 N.J. 168,
192 (1991) (stating that once an issue is contested and decided,
the resolution achieved must be respected by all courts of equal or
lower authority); R. 2:4-1(a).
Matthei was precluded from relitigating those issues in this
proceeding primarily by application of principles of collateral
estoppel. In re Dawson,
136 N.J. 1, 20 (1994) (stating that a
party who had previously litigated the identical issue in a prior
proceeding, and received a final judgment on the merits, is
estopped from relitigating the issue in another proceeding, so long
as the issue determined was essential to the determination in the
prior proceeding). It is of no consequence that Judge Whitken, in
stating his reasons for ordering Matthei's incarceration on the
issues before him, did not specifically articulate a determination
that Matthei had disposed of his property with the intent to
defraud his matrimonial creditors. That was a conclusion which
followed from the facts that had been developed and found, one
which Judge Stein was well warranted in reaching in this matter.
SeeYeiser v. Rogers,
19 N.J. 284, 287 (1955) (quoting N.J.S.A.
25:2-13 (since repealed and superseded by N.J.S.A. 25:2-25), "Every
'conveyance made and every obligation incurred with actual intent
. . . to hinder, delay or defraud . . . creditors is
fraudulent[.]'"). Matthei's own statements, both before Judge
Whitken and Judge Stein, were themselves adequate as a basis for
It was manifestly appropriate that collateral estoppel should
be invoked against Matthei in respect of the factual issues which
were embodied in Judge Whitken's findings, especially that Matthei
had transferred or otherwise disposed of his assets in order to
defeat his former spouse's alimony rights and equitable
distribution claims as well as his children's rights to child
support. The issues regarding disposition of Matthei's assets were
identical, he had been represented by counsel in the proceeding
before Judge Whitken, and he had had a full and fair opportunity to
litigate all material questions. SeeHernandez v. Region Nine
146 N.J. 645, 659-60 (1996) (citing Restatement
(Second) of Judgments §§ 27, 28 (1982)) (recognizing that New
Jersey has adopted the rule of collateral estoppel as articulated
in the Restatement, with the added requirement of exact
identicality of issues); Zirger v. General Acc. Ins. Co.,
144 N.J. 327, 338 (1996) (referring to § 29 of the Restatement and noting
that "mutuality of parties no longer is an essential condition of
collateral estoppel," as long as "the party against whom collateral
estoppel is to be invoked [was] . . . in 'privity' with a party in
the first action"); United Rental Equipment Co. v. Aetna Life &
Cas. Ins. Co.,
74 N.J. 92, 101 (1977) (applying the draft principle
which was adopted as § 29 of the Restatement (Second) of Judgments
(1982): "A party precluded from relitigating an issue with an
opposing party . . . is also precluded from doing so with another
person unless he lacked full and fair opportunity to litigate the
issue in the first action or unless other circumstances justify
according him an opportunity to relitigate the issue.").
All the prerequisites for issuance and maintenance of the ca.sa. had been satisfied. See, e.g., Perlmutter v. DeRowe,
58 N.J. 5, 13-14 (1971) (discussing the "function and place of ca.sa.");
Fidelis Factors Corp. v. Du Lane Hatchery, Ltd.,
47 N.J. Super. 132, 139-40 (App. Div. 1957). For these reasons, in A-4386-98, we
affirm the trial court's January 21, 1999 denial of Matthei's
motion to dismiss the writ, except to note, as we will develop
below, that Matthei had a right at the time to a plenary hearing on
the question of whether his circumstances had changed since the
earlier determination relative to his capacity to discharge his
judgment obligation in this matter.
The only remaining question before us, posed in A-7026-98, is
the correctness of the trial court's order discharging Matthei from
incarceration on the ca.sa. on the ground that its coercive
potential had been exhausted.
A capiasadsatisfaciendum is a "body execution" that enables
a judgment creditor in certain types of cases to cause the judgment
debtor to be arrested until the debtor either pays the judgment or
is discharged as insolvent. Perlmutter, supra, 58 N.J. at 14.
Ca.sa. is an ancient writ. Id. at 11. The practice of
imprisoning debtors was common both in England and in New Jersey
during the State's infancy. Ibid. It was sharply curtailed,
however, by N.J. Const. art I, § 13, first adopted in 1844. Ibid.
The writ essentially acts as a contempt-like device against the
defendant who has the means to pay a judgment but refuses to do so.
It is applied with due regard for the constitutional safeguard:
"[n]o person shall be imprisoned for debt in any action, or any
judgment founded upon contract, unless in cases of fraud[.]" N.J.
Const. art. I, § 13.
The issuance of a ca.sa. in respect of a judgment founded on
a contract is governed byN.J.S.A. 2A:17-78. Specifically, the
A capias ad satisfaciendum shall not issue on a
judgment founded upon contract, express or implied,
a. Where an order to hold the defendant to bail
has been issued and remains in force; or
b. When due proof is made to the court,
1. The facts on which an order to hold to
bail could issue under the provisions of
section 2A:15-42 of this title; or
2. That defendant has rights or credits,
money or effects in his own possession or
the possession of some other person to
his use, of the value of $50.00 or over,
which he unlawfully refuses to apply in
payment of the judgment against him.
Our review of the relevant case law has revealed a dearth of
precedent concerning the standards governing implementation of ca.sa. writs. The standards for proceedings in relief of litigant's
rights under R. 1:10-3, however, are plain. They, too, have
contempt-like roots. We discern no reason why the same standards
as have developed to govern civil contempts and proceedings in
relief of litigants' rights should not apply, as appropriate, to
ca.sa. commitments. R. 1:10-3 was amended in 1998 and 1999 to express standards
governing incarceration for violating litigants' rights with more
precision than had previously been employed. The rule provides for
relief to litigants permitting the commitment of "a judgment debtor
[who] has assets that have been secreted or otherwise placed beyond
the reach of execution." R. 1:10-3. The rule of Pierce v. Pierce,
122 N.J. Super. 359, 361 (App. Div. 1973), continues to prevail.
A finding that the debtor has the ability to discharge his ordered
obligations is required. The underlying requirements of an R.
1:10-3 confinement of a debtor are therefore nearly identical to
the statutory and decisional requirements for the issuance of a ca.sa. The close relationship between the purposes of and
restrictions upon the two forms of confinement furnishes another
justification for using the analytical framework of R. 1:10-3, as
well as that pertaining to civil contempts, in evaluating the
propriety of Judge Stein's disposition of the ca.sa.
The R. 1:10-3 test and the requirement for a Pierce finding
were clearly satisfied by Judge Whitken's findings and by Judge
Stein's October 10, 1996 conclusion based thereon that Matthei had
conveyed his property with the intent to defraud creditors and was
refusing to apply available assets in payment of Marshall's
judgment. However, "[i]t is well-established that '[t]he legal
justification for commitment for civil contempt is to secure
compliance. 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 (App. Div. 1990) (quoting Catena v. Seidl,
65 N.J. 257,
262 (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 I, supra, 65 N.J. at 263. "No hard
and fast rule can be formulated and no fixed period of time set."
Ibid. "[T]he critical question is whether or not further
confinement will serve any coercive purpose." Catena v. Seidl,
68 N.J. 224, 229 (1975) (Catena III). The burden of showing that the
incarceration has lost its coercive effect and has become punitive
is on the party who is incarcerated. Acceturo, supra, 242 N.J.
Super. at 287; Catena I, supra, 65 N.J. at 263.
Because there is no definitive time frame to determine when
the incarceration has become punitive rather than coercive,
Acceturo, supra, 242 N.J. Super. at 287-88, to the extent it is
used to secure compliance with a court order, incarceration "where
indicated, should not be limited or delimited by a term, but should
depend for its length on the continuation of noncompliance."
Pierce, supra, 122 N.J. Super. at 360. Indeed, where a person who
has the ability to pay is incarcerated on a ca.sa., or on an order
in relief of litigant's rights, as with a civil contempt, "the key
to the jail is in the prisoner's pocket, that key being compliance
with the order." Ibid.; seealsoIn re Daniels,
118 N.J. 51, 59-60
(1990) (citing Hicks v. Feiock,
485 U.S. 624, 646,
108 S. Ct. 1423,
99 L. Ed.2d 721, 741 (1988)).
In determining whether incarceration is punitive rather than
coercive, a court must bear in mind a party's willful behavior.
Acceturo, supra, 242 N.J. Super. at 288. "It is to counter such
willful conduct that courts have inherent power to incarcerate to
enforce compliance with their lawful orders[.]" Ibid. (citing
Spallone v. United States,
493 U.S. 265, 274-75,
110 S. Ct. 625,
107 L. Ed.2d 644, 655 (1990)). 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. Seeibid. We are further
persuaded of the correctness of this view because of an alternative
independently available to a debtor who genuinely lacks the ability
to pay a civil judgment of the type at issue here: discharge in
bankruptcy. SeePerlmutter, supra, 58 N.J. at 14. A civil
contemnor who eventually gains his release after continuous refusal
to testify has had no such independent means for neutralizing the
obligation upon which the incarceration was based.
The application of this civil-contempt and relief-to
litigant's-rights confinement analysis to the matter before us
convinces us that Matthei was not entitled to release from the ca.sa. incarceration which Judge Stein ordered, based solely on his
refusal to pay. We do hold, however, that Matthei was entitled to
a full evidentiary hearing on whether the material circumstances
upon which the ca.sa. was based had changed in the interim to the
extent that full or partial satisfaction of his judgment
obligations was no longer possible.
An individual committed for civil contempt has the right to
periodic review so that it can be determined whether circumstances
have changed. Acceturo, supra, 242 N.J. Super. at 288-89. 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), seeAcceturo, supra, 242 N.J. Super. at 288-89,
or sooner upon a primafacie 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.
Where the court determines that a petition for release may
have merit and requires a hearing, the matter should be promptly
decided. See id. at 290. But release cannot be granted "without
affording the [adversary] the opportunity at a hearing to test the
veracity and credibility of the proofs offered in support of the
petition[.]" Ibid. We, of course, have no basis for addressing at
this time the adequacy of any grounds that may be offered in
support of a petition for release, or any other issues which may
arise at that time, including the sufficiency of a proffer that
Matthei lacks the resources to pay the judgment because of a
transfer of funds that was wrongful. SeeN.J.S.A. 2A:17-78b.2.
The August 17, 1999 order of the trial court releasing Matthei
from incarceration on the ca.sa., on appeal in A-7026-98, is
accordingly reversed. The matter is remanded for a plenary hearing
on the question whether the ca.sa. incarceration should continue
based on the standards of N.J.S.A. 2A:17-78; i.e., a determination
whether intervening circumstances since the fall of 1996 have
adversely affected Matthei's capacity to discharge his judgment
obligations in whole or in part.
To summarize, in A-4385-98 and A-4386-98, we affirm. In A
7026-98, we reverse and remand.
Footnote: 1 1 On December 14, 1995, Matthei had entered into a prenuptial