Preview:

a3538-03.opn.html
Original Wordprocessor Version
This case can also be found at *CITE_PENDING*.
(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3538-03T13538-03T1
ELLEN C. MARSHALL,
Plaintiff-Respondent,
v.
WARREN D. MATTHEI,
Defendant-Appellant.
Argued: September 13, 2005
Decided:
Before Judges Kestin and Seltzer.
On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Essex County,
L-3894-93.
Scott C. Pyfer argued the cause for appellant (Reed Smith, attorneys; Mr. Pyfer, of
counsel and, with James A. Dempsey, on the brief).
Clark E. Alpert argued the cause for respondent (Alpert Goldberg Butler Norton &
Peach, attorneys; Mr. Alpert, of counsel and, with David N. Butler, on the brief).
PER CURIAM
Defendant, Warren Matthei, appeals from the trial court's March 3, 2004 order denying his application for discharge
of a writ of capias ad satisfaciendum and release from incarceration. The background facts of the matter are related
in detail in our opinion in Marshall v. Matthei, 327 N.J. Super. 512 (App. Div. 2000). We will not rehearse them here.
The hearing that led to the order under appeal in the instant matter was the most recent periodic review mandated
in our prior opinion, id. at 529. We held there that such evidentiary hearings "must be held no less frequently than
18 months after the last hearing[.]" Ibid.
file:///C|/Users/Peter/Desktop/Opinions/a3538-03.opn.html[4/20/2013 4:03:00 PM]




a3538-03.opn.html
After digesting the testimony and other evidence received in a two-day hearing in early December, 2003,
Judge Honigfeld rendered an oral opinion on February 19, 2004, denying the application, stating, inter alia: "I do not
find that the defendant has met his burden. So I will not discharge the capeas writ." The judge added: "It always
remain[s] open to provide information and the like which might ultimately lead even before an 18-month period to
another changed circumstance hearing[;] that door is always open." The order memorializing the trial court's ruling
was entered on March 3, 2004.
On appeal, defendant advances two arguments:
POINT I MATTHEI HAS PROVIDED TO MARSHALL ALL INFORMATION ABOUT HIS ASSETS
THAT IS REASONABLY AVAILABLE TO AND KNOWN BY HIM. AS SUCH, THERE IS NO
REASON FOR HIS CONTINUED INCARCERATION UNDER THE WRIT OF CAPIAS AD
SATISFACIENDUM.
POINT II MATTHEI HAS SUSTAINED HIS BURDEN OF SHOWING THAT HIS CONTINUED
INCARCERATION UNDER THE WRIT HAS BECOME PUNITIVE, AND HAS LOST ITS
COERCIVE EFFECT.
The standard of review that applies to a trial court's findings on a motion is found in the substantial evidence rule
enunciated in Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). See Borough of Glassboro v.
Gloucester County, 100 N.J. 134, 154 (1985); see also Abtrax Pharmaceuticals, Inc. v. Elkins Sinn, Inc., 139 N.J. 499,
517-22 (1995).
Our review of the record in the light of the arguments advanced by the parties and prevailing standards of law
discloses ample support in the evidence before Judge Honigfeld for his conclusion that defendant had not
sustained his burden of proving lack of control over his putative assets or the persons managing them, or otherwise
establishing his impecuniousness. In the circumstances established in the history of this case and in the instant
hearing, we discern no merit in the contention that the writ has become punitive and has lost its coercive effect.
Accordingly, we affirm.
(continued)
(continued)
3
A-3538-03T1
September 21, 2005
file:///C|/Users/Peter/Desktop/Opinions/a3538-03.opn.html[4/20/2013 4:03:00 PM]




a3538-03.opn.html
0x01 graphic
This archive is a service of Rutgers School of Law - Camden.
file:///C|/Users/Peter/Desktop/Opinions/a3538-03.opn.html[4/20/2013 4:03:00 PM]

Download a3538-03.opn.pdf

New Jersey Law