Yes, but only with the Court’s approval. Discovery is an important process in divorce cases. While getting divorced in New Jersey, the lawyers shall provide their clients with options as to how to obtain documents and evidence to base their arguments and allegations on. Because discovery can make or break the ultimate settlement of a divorce, it is important to hire an attorney that understands the nuances of the rules governing discovery. However, if you and your ”ex” return to the Family Part of the Superior Court of New Jersey with issues that arose after the divorce has been finalized, the court requires all attorneys to first get the courts permission to issue a subpoena to get discovery. Permission for a subpoena will rest upon a threshold showing of good faith.
In Welch v. Welch, father William Welch sought residential custody of his fifteen-year-old son who lived with his ex-wife Karen Welch. The main issue in the case was the recurring problem of unauthorized discovery in a post-judgment motion. Specifically, Judge Guadagno of the Family Part of Monmouth County was tasked with deciding if William should be allowed to rely on sever documents he obtained from a subpoena that was issued by his attorney, without prior court approval, and in the absence of any pending trial or plenary hearing.
The only child of the marriage, referred to by the court simply as Mark, was born on May 20, 1992. On July 19, 1994, William and Karen Welch were divorced by final judgment. A custodial agreement was incorporated into the final judgment of divorce which granted both parents shared physical and legal custody of the child. When Mark turned four years old, Karen was designated as the parent of primary residence, and William would have parenting time on the weekend. In 2002 William remarried, and moved in with his new wife and her two kids. Karen would also remarry, but then file a complaint for divorce in August 2007 that was still pending at the time of this trial.
William contended that Karen had significant mental disorders, and that their child was not safe in her care. He alleged that she made up claims about being victimized by a stalker, and further contended that she behaved irrationally over a disagreement about parenting time. He further contended that she sent numerous disturbing e-mails to his attorney, during the parenting dispute, and that she was acting “imbalanced” and “unstable” during her pending divorce from her current husband, and that she had “brainwashed” Mark and turned him against William. Karen denied every one of her ex-husband’s allegation, and contended that her son was emotionally stable, and an honors student who took advanced placement high school classes. She argued that because Mark was a high-functioning student who thrived in her care, there was no need for a change in custody.
On November 8, 2007, William filed a notice of motion, certification, and letter brief with the court. Two days before that, his attorney issued a subpoena duces tecum with the Marlboro Police department, with an ad testificandum clause, which requested the production of any incident reports, or summonses regarding Karen Welch or William Welch. Additionally, the subpoena also “commanded” the supervisor of the police records department to attend and give testimony in front of the court on November 30, 2007, the day the motion was to be heard. A subpoena duces tecum is used to secure the production of documents to be used for evidence. The subpoena also contained language warning the record custodian that failing to appear as per the command of the subpoena might subject him to a penalty, damages, and contempt of court.
As a result, the Marlboro Police Department provided 98 pages in police reports on November 26, 2007. William relied on these documents in court to support his claim that Karen had a mental instability. However, the Family Part of Monmouth County decided not to consider any of the documents provided by the Marlboro Police Department, because they had been procured in violation of established court rules.
While it is true that the rules governing discovery are liberally construed, and given the broadest possible latitude, in family matters, discovery is much more limited than other fields of law. The New Jersey Supreme Court Committee on Matrimonial Litigation, explained in their 1981 Final Report why discovery is much more limited in family matters, and stated that “discovery, other than interrogatories, relating to the underlying cause of action should not be permitted except by order of the Court.” Even though there have been many advancements in a litigant’s right to discovery in matrimonial issues since then, these advancements have only applied to pretrial litigation. Motions filed after a divorce judgment has been entered still have little to no discovery rights without a court order.
Rule 5:5-1 governs discovery in matrimonial matters and provides that as a matter of right, every litigant is entitled to interrogatories related to all issues in all family actions, and depositions of anybody, not including family members under the age of 18, relating to all matters except the elements that constitute the basis for divorce. Moreover, interrogatories that request financial information can be answered with a reference to the case information statement. These three sections clearly apply to pretrial discovery, and Rule 5:5-1 states that all other forms of discovery in family law issues can only be permitted by permission of the court for good cause, except for production of documents, requests for admissions, and copies of documents that are referred to in other pleadings.
Rule 4:14-7 governs pretrial subpoenas, and allows their issuance within very strict limits. Judge Guadagno was sure to note that Rule 4:14-7 is only limited to pretrial litigation and does not apply to post-judgment motions. Furthermore, a lawyers power to issue a subpoena duces tecum to procure discovery is a significant power that must be exercised in good faith with strict adherence to the rules to avoid potential abuses of power. It is a violation of the New Jersey Rules of Professional Conduct, specifically, R.P.C. 3.4(c)-Fairness to opposing party and R.P.C. 4.1-truthfulness in statements to others, to egregiously use subpoena power to get information in an impermissible manner. Matrimonial issues only heighten the need for good faith in exercising subpoena powers. Using subpoenas in post judgment matrimonial motions, only increases the likelihood for abuse. In Welch, William’s attorney issued the subpoena before the motion was even filed. Furthermore, William was aware that there was no plenary hearing scheduled at that time where testimony could be given, because he requested a plenary hearing in his motion.
According to Rule 5:5-1, discovery in summary actions requires permissions from the court upon a showing of good cause. While Rule 4:67-1 notes that summary action rules do not apply to family law actions, post-judgment matrimonial motions are summary in nature and resolved with little to no discovery. Therefore, the discovery in matrimonial motions filed after a judgment for divorce has been entered, rests upon the discretion of the court, and requires a threshold showing of good faith. This is because, if litigants were allowed to engage in unrestricted discovery every time a post-judgement motion was filed, it would effectively turn motion practice into mini-trials that would cause the long delays that Rule 5:5-4 was enacted to prevent.
After Karen’s attorney found out about the subpoena to the Marlboro Police Department, a cross-motion was filed to institute sanctions against William’s attorney for issuing the subpoena. Judge Guadagno of the Family Part of Monmouth County, weighed the case law and equities of the case, and decided that the court must disregard the documents obtained from the subpoena. Because these improperly obtained documents were the bedrock of William’s motion, and he failed to establish that a change is custody was in the child’s best interest otherwise, his motion for a change in residential custody was denied.
If you and your “ex” are still having issues after your divorce, please contact my office to learn how we may help you.