United States: Appellate Division Upholds Ultimate Price Against Litigant for Playing Discovery Games

Last Updated: June 14 2016
Article by Robert A. Epstein

Too often in family law practice, the discovery process by which one litigant is supposed to procure information from the other litigant becomes a frustrating and costly game where the non-compliant party hopes that the other party will simply give up rather than continue the chase down the rabbit hole of information.  Long-term readers of this blog may, in fact, remember Eric Solotoff's post about the Discovery Dance, where parties can, in fact, "dance if they want to and leave their friends behind".  Information is deliberately withheld, or incomplete, or ignored, etc.   As opposed to standard civil litigation, however, it often seems that a non-compliant litigant does not pay the price for such misconduct.  While perhaps this simply goes along with family law's often mis-characterized "Wild West" reputation, what is one party who simply can't get information from the other party to do when discovery motions are commonly frowned upon as a waste of the court's limited resources?

This is especially true in cases where one party seeks to modify an alimony or child support obligation.  Trying to get the full financial picture, especially from the party seeking the modification, is often the most difficult challenge of litigating such a matter.  It often becomes even more difficult in cases where either party is remarried and the new spouse has assets, income and the like that the remarried litigant does everything he or she can to shield from the court's consideration.  This becomes a problem when one party is, perhaps, providing the new spouse with money to hold in a separate account, or the house is solely in the new spouse's name, and the like.  In other words, the financial picture can be manipulated a dozen different ways and roadblocks structured so that the court never has all of the relevant facts and circumstances upon which to render a determination.

In Null v. Null, a recently unpublished (not precedential) decision from the Appellate Division, an ex-husband's application seeking a termination of his alimony obligation was dismissed – with prejudice – because of his repeated refusals to comply with discovery requests and related court orders.  Here is a brief recitation of the relevant facts:

  • After a lengthy post-judgment procedural history wherein the payor sought to terminate his alimony obligation, the court – in November 2010 – found that he had made an initial showing of "changed circumstances" sufficient to warrant a plenary hearing on his motion to reduce alimony.  Notably, payee claimed that payor had entirely stopped making alimony payments at that point.
  • The judge directed that payor produce certain forms of discovery including, but not limited to, his current wife's most recent three pay stubs.  Payor objected, moving to bar discovery of his new wife's assets.  The motion was denied because payor was claiming to be employed by a business owned by new wife, and payee claimed that payor had placed businesses and assets he owned in new wife's name.
  • Payor subsequently moved again to block discovery of his new wife's financial information and was denied.  Payor was ordered to pay counsel fees – the first of many consequences to the payor for his misconduct.  New wife was also ordered to sit for her deposition.
  • At her deposition, new wife failed to produce tax returns or pay stubs as previously ordered.  She also failed to produce documents relating to the dry cleaning business payee claimed was owned by her.
  • With scheduled trial dates having come and gone, and payor still having failed to comply with discovery, the trial court denied payor's motion to depose payee and compel her to undergo an employability evaluation.  In so doing, the judge noted that payor took no issue with violating discovery orders, and "unreasonably delayed" payee's ability to effectuate litigation.  Counsel fees were again awarded for payee.
  • In October 2013 – three years after the initial changed circumstances burden was fulfilled – a third trial judge entered an order rescheduling the plenary hearing, and appointing an expert to examine businesses allegedly owned by new wife and operated by payor.  Payee was permitted to depose new wife as to whether payor maintained an equitable ownership of the businesses registered to new wife.  Payee was again awarded counsel fees for a third time.  Payor sought reconsideration and a stay of the October 2013 orders.
  • On April 3, 2014, the trial judge dismissed payor's motions to modify alimony – with prejudice – pursuant to Rule 4:23-2(b) based on payor's "failure to cooperate with the court's expert, his failure to file complete Case Information Statements, and his extensive history of failure to timely respond to [payee's] discovery requests and comply with court orders."  Payor was also ordered to resume alimony payments at $6,000 per month, and to pay $201,000 in alimony arrears from November 2010 (when the hearing was first scheduled) through March 2014.

While noting that dismissing an action "with prejudice" (a final determination on the merits of the case that precludes further litigation of the matter) because of a party's failure to comply with discovery is a drastic sanction "generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious," the Appellate Division affirmed the trial court's decision to do so in this case.

In so doing, the Court analyzed the differences between Rules 4:23-2 and 4:23-5 of the New Jersey Court Rules because payor argued that the trial court engaged in an abuse of discretion under 4:23-5 by failing to first dismiss the case "without prejudice" (a dismissal without a decision on the merits that leaves the parties able to litigate the matter in a subsequent action) and then only dismissing "with prejudice" if he failed to thereafter comply.  Disagreeing with payor, the Appellate Court found that while 4:23-5 does, in fact, require the initial without prejudice dismissal, 4:23-2 does not.

Here, payor even acknowledged that he had not been compliant with all discovery demands made, and his position that he and his new wife had provided timely and relevant information was unsupported by the record.  After more than five years of continuous litigation, there was still no clear picture of payor's earnings, and the trial court found that his "willful and deliberate violations of court orders across a period of more than five years justified dismissal."  Five years of delay.  At least ten court orders directing payor to provide payee with discovery to which she was entitled.  Still no end in sight.

The Appellate Division concluded, in light of such facts:

  • "[T]he trial court reasonably concluded that it was unfair to plaintiff to be interminably delayed in resolving the alimony dispute."
  • "Because the judge's decision was prompted by defendant's blatant and continuous defiance of several court orders, we perceive no abuse of discretion in her decision to dismiss defendant's claim with prejudice."

While there will always be litigants who believe that the discovery rules and obligations are not worth more than the paper on which they are written with the belief that playing games will provide the optimal result, the trial court's implementation of available sanctions shows that, at least in some cases, there is a price to pay for such non-compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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