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Yes.  The lawyers at our law firm always advise our divorce clients to be sure to comply with all “discovery” requests made by the other divorce attorney in your case.  Now ultimately as attorneys we shall determine whether or not you shall not have to comply with any and all discovery requests (and then your lawyer shall file a motion with a New Jersey Divorce Court to explain why we do not feel you are required).  But absent one of our attorneys advising you otherwise, all discovery request must be complied with, ranging from Case Information Statements, bank records, the appraisal or sale of the former marital home as well as cooperation with experts such as a forensic accountant who is evaluating a business that is part of your divorce.

In Sahai v. Sahai, the parties were married in 1986 and had three children before their divorce in 2012.  The current dispute regarded the parenting time for the Mother with the parties’ severely disabled adult child, K.S.  The Property Settlement Agreement (“PSA”) that was incorporated into their final judgment of divorce provided the Mother with no parenting time with K.S.  From the time K.S. was born until the divorce, the Mother and Father had cared for her with the help of an aide.  In July of 2014, the Mother sought to vacate the PSA in order to obtain parenting time with K.S., claiming that the Father had coerced her into signing the PSA.

Following the Mother’s motion to vacate the PSA, the court ordered a plenary hearing for January of 2015.  Prior to the hearing, the court ordered a one-hour visit for the Mother with K.S. at a library with K.S.’s aide present.  The Father never brought K.S. to the visit.  The court then signed a consent order providing for three one-hour visits at the library with the Mother.  When the Father again failed to comply with the visitation orders, the court issued another order “providing for sanctions of $10,000 for each failure by [the Father] to comply with the upcoming visitation.” The Father still did not bring K.S. to the court-ordered visits.

Due to his violation of the court order, the Father was sanctioned $20,000.  He appealed this order.  He was also ordered to provide more responsive answers to discovery requests, but he failed to comply with this order as well.  In his appeal, the Father argued that the $20,000 sanction for missing the two visits was “abusive, arbitrary, capricious, excessive, and punitive.”  He stated that he was not able to afford the sanctions and that his actions in missing the visits were not willful.  He therefore argued that he should be entitled to an ‘ability-to-pay’ hearing before being sanctioned.  Ability-to-pay hearings are designed to examine a party’s present financial abilities to pay existing support obligations.  The court did not argue that the Father would not be entitled to this hearing before incarceration.

However, the Father had failed repeatedly to comply with financial discovery orders.  Because of this, the trial court determined that he was in no position to argue that he could not afford the sanctions or that he should now be granted an ability-to-pay hearing.  The court stated that it did not find the Father’s testimony credible in regard to his financial situation because his failure to comply with financial discovery led the court to “the reasonable inference that [he is] either attempting to hide money or [he is] attempting to mislead the court as to [his] own financial situation.”  Repeatedly refusing previously to disclose his financial information barred him from later arguing that he should not have to pay the sanctions because he could not afford them.

The Father also argued that the missed visitations were not willful.  However, he offers no support for this contention.  The trial court found the Father’s willfulness obvious in the record.  He had violated multiple visitation orders including a consent order from the court.  His attempt to use medical excuses also failed, as medical assistance for K.S. was a part of the brief visitations.  After each violation, he was also warned of the financial consequences that could result from his failure to cooperate.  According to N.J. Court Rule 5:3-7, nine remedies are available to the court in connection with the violation of orders relating to parenting time, including the authority to impose economic sanctions.

In its discussion of the appeal, the Appellate Division explained the deference given to a trial court’s finding, especially in credibility determinations.  Here, the trial court had extensive litigation experience with the parties.  The Appellate Division was therefore more inclined to give deference to their credibility and behavior determinations of the Father.  The court even noted his “obstructionist litigation” that led to repeated delays in the ordered hearing for the Mother’s application to vacate the PSA.  Because of this, the Appellate Division agreed with the trial court’s determination that the Father willfully missed the court ordered visits.  It further upheld the trial court’s imposition of sanctions finding that it was a reasonable exercise of judicial discretion.

Your inquiry is invited.