As an experienced divorce attorney I know first-hand just how difficult it is to terminate an alimony obligation. In addition, this lawyer always is sure to always advise clients that they must comply with all court orders generated from a New Jersey Family Court. Specifically, if you are looking to modify or terminate alimony and your attorney is successful in establishing a prima facie case on your behalf, the discovery period will commence, often with certain specific documentation being required. Discovery is a procedure by which litigants can obtain evidence and information from the other party that is essential to a cause of action or lawsuit. Refusing to comply with court ordered discovery could lead to sanctions, like paying the other side’s attorney’s fees. The continued disregard of court ordered discovery could lead to the ultimate sanction of dismissal with prejudice. William Null found this out the hard way, after his motion to reduce his alimony obligation was denied with prejudice because of his blatant and continuous defiance of at least ten court orders for essential discovery.
In Null v. Null, ex-husband William Null appealed from an order of the Superior Court of New Jersey, Family Part of Ocean County that denied his motion to reduce or terminate his alimony obligation. He argued that the Family Part judge abused her discretion in dismissing his motion with prejudice.
William and Lynn Null married in 1978, and had two children together. When they divorced on November 18, 2005, their final judgment of divorce incorporated a mutually agreed to property settlement agreement. According to the terms of the property settlement agreement, William would pay Lynn $ 6,000 a month in permanent alimony, based on a yearly salary of $ 175,000.
William first tried to reduce his alimony payments in 2007, through mediation. Even though mediation failed, Lynn alleged that William still decided to unilaterally reduce his alimony payments to $ 5,000 a month. As such, she filed a motion for enforcement of the alimony obligation, and William responded with a cross-motion for a reduction of his alimony obligation. On September 4, 2009 William’s cross-motion for reduction was denied, and Lynn’s motion for arrears was granted. The judge found that William failed to include income he received from a rental property in Morristown in his case information statement. He also failed to list a property he owned in Chatham. The judge ordered both parties to submit discovery within forty-five days.
The Family Part again entered an order on February 9, 2010 that denied William’s motion to reduce alimony, and set his outstanding arrears at $ 81,804.75. The judge stated that he did not comply with the discovery demand in the September 4, 2009 order, and the fact that he continuously failed to submit his complete financial situation demanded that sanctions be imposed against him. As such, Lynn was awarded $ 10,099 in attorney’s fees. The court issued an another order on May 13, 2010 that required the former couple to return to mediation. Furthermore, William was ordered to submit additional discovery, pay Lynn the attorney’s fees awarded in the prior order, to keep paying his alimony obligation and alimony arrears he owed, and pay a penalty because he failed to submit the proof of life insurance that he was required to do in a past order.
After the May 13, 2010 order, William stopped paying his alimony and arrear payments all together. Lynn was forced once again to file a motion to enforce alimony, and William again filed a cross-motion for a reduction of his alimony obligation. A Family Part judge found that he had established a prima facie showing of changed circumstances that warranted a plenary hearing. As such, the judge ordered him to provide discovery, specifically his 2009 tax return, 2009 W-2, and his current wife, Joan Arata’s, three most recent pay stubs. In response, William filed a motion to bar any discovery related to Joan’s assets. This motion was denied on February 2, 2001, and the judge explained that William claimed to be an employee of a business owned by his current wife, and Lynn alleged that he had placed businesses and assets he owned in Joan’s name. On March 25, 2001, the court once again denied a motion to bar discovery of Joan’s finances, ordered her to appear for deposition, and reaffirmed the discovery demands from the November 1, 2010 order.
On March 23, 2011, William had submitted a case information statement that showed he had given a loan of $ 107,500 to laundromat business. On August 2, 2011 Lynn was awarded $ 6028 in attorney’s fees because William still failed to meet the discovery demands. While Joan finally showed up for a deposition on September 8, 2011, she did not produce any tax returns or paystubs as the previous order required. She also did not produce any documentation related to the dry cleaning business that William claimed she owned.
A second judge scheduled trial for March 15 and 16, 2012, and ordered the former couple to exchange any and all exhibits they wanted to use at trial. The judge once again ordered William to submit discovery on December 23, 2011, and provide his state and federal tax returns from 2010, and specific responses to Lynn’s discovery deficiency letter from April 28, 2011. This judge denied William’s request to depose Lynn and compel her to take part in an employability evaluation on June 27, 2012. The judge stated that William blatantly and without issue violated the court’s discovery orders, and his delay in permitting Lynn access to documents unreasonably delayed her ability to effectively take part in litigation. William was found to engage in continued efforts to impede the discovery process in bad faith, and the judge ordered him to pay Lynn $ 16,069 in attorney’s fees.
A third judge was assigned to the case in February 2013. This judge rescheduled the plenary hearing regarding William’s ability to pay, and permitted Lynn to depose Joan about the ownership of the business. Lynn was awarded $ 15,000 in attorney’s fees and costs. William filed for reconsideration, and to stay the two October 2014 orders. Pursuant to Rule 4:23-2(b) his motions were dismissed with prejudice on April 3, 2014, because he failed to complete case information statements, and his history of failing to meet Lynn’s discovery requests and comply with court orders. He was ordered to resume alimony payments of $ 6,000 a month, and to pay the $ 201,000 he owed in alimony arrears from the past five years. William appealed.
On appeal, William argued that the judge abused his discretion by dismissing his motion with prejudice because Rule 4:23-5 required that a judge must first dismiss the issue without prejudice, and could only dismiss a motion with prejudice if he did not comply with Rule 4:23-5 after that. The New Jersey Appellate Division did not agree.
The appellate panel explained that rules of discovery are intended “to further the public policies of expeditious handling of cases; avoiding stale evidence, and providing uniformity, predictability and security in the conduct of litigation.” New Jersey courts are authorized to impose sanctions for clear violations of discovery rules. Dismissal, the “ultimate sanction”, however must only be imposed sparingly. Because a dismissal of a motion with prejudice is drastic, it should only be issued in cases where the discovery order goes to the very core of the action or motion itself, or where the failure to comply is deliberate and willfully disobedient. When a litigant willfully thwarts the efforts to obtain necessary facts, he or she invites the extreme sanction of dismissal with prejudice.
Rule 4:23-2(b) allows for a dismissal with or without prejudice for failing to comply with a discovery order, when litigant fails to abide by an order to permit or provide discovery. In determining whether dismissal is an appropriate option, the court must analyze the facts, including but not limited to the willfulness of the violation, the party’s actual ability to produce the discovery, how close the trial date is, and how it detrimentally affects the opposing party, and then fashion an appropriate remedy. The New Jersey Appellate Division has held that when a party had failed to abide by four court orders for discovery, he or she has “invited the extreme sanction” of a dismissal with prejudice. After more than five years, Lynn still not have an accurate and clear idea of William’s income and earnings. Because of this five-year delay and at least ten court orders demanding William to provide Lynn with the discovery she was rightly entitled to, the New Jersey Appellate Division concluded that there was no abuse of discretion on the part of the Family Part judge, and affirmed the April 3, and September 5, 2014 orders.
My office stands prepared if you or a loved one is facing an issue regarding alimony payments.