Alimony Motion Dismissed For Discovery Violations
- August 10, 2016
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Null v. Null involved an alimony matter on appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County. The parties married in 1978, had two children in 1982 and 1984 respectively, and were divorce in 2005. They entered into a negotiated property settlement agreement (PSA) at the time of divorce including permanent alimony from the Defendant to the Plaintiff in the amount of $6,000 per month based on his annual income of $175,000 with a formula for calculating increases and caps in alimony as Defendant’s income fluctuated. In 2007, the Defendant unilaterally reduced his alimony payment to $5,000 monthly. Thereafter, a series of motions were filed resulting in the establishment of arrearages and discovery orders which the Defendant continuously ignored with the result of sanctions in the form of counsel fees to the Plaintiff, Lynn Null. The Defendant, William Null appealed portions of the family part order dismissing with prejudice his motion to terminate alimony, or reduce his obligation; vacating orders granting a plenary hearing and appointing a forensic accountant; ordering him to resume alimony payments, including arrears and counsel fees to Plaintiff; and denying his motion for reconsideration. Defendant cited abuse of discretion by the judge in the dismissal of his motion with prejudice. Plaintiff cross-appealed for a recalculation of the alimony arrearage. Although the “absolute sanction” of dismissal is to be utilized sparingly under Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499 (1995). The N.J. Appellate Division looked to Zaccardi v. Becker, 88 N.J. 245 (1982) which held that discovery rules are designed to facilitate and provide uniformity to litigation. Additionally, under Summit Tr. Co. v. Baxt, 333 N.J. Super. 439, 450 (App. Div.), cert. denied, 165 N.J. 678 (2000), courts have the authority to impose sanctions for violations that fly in the face of the rules. Rule 4:23-5 and Rule 4:23-2 permit dismissal with prejudice only after permitting a party opportunity to remedy the discovery violations. Casinelli v. Manglapus, 181 N.J. 354, 365 (2004) defined that the court must assess the “willfulness of the violation, the ability of [the party] to produce [discovery],” prejudice to the party not in violation and the length of time before trial. The Appellate Division reviewed the fact that in cases where a party persistently violated discovery obligations they found dismissal with prejudice to be appropriate. They found that the motion judge still did not know the Defendant’s actual earnings after years of ongoing litigation and that the Defendant’s actions were deliberately designed to cause that result. In light of the Defendant’s willful and repeated violations, the N.J. Appellate Division affirmed the dismissal with prejudice. If you are facing divorce, alimony can have lasting and substantial consequences upon your future whether you are the obligee or the obligor. It is imperative that you obtain an experienced divorce attorney for your divorce or motion for modification in order to ensure that your rights are protected. For more information about divorce, alimony, child support and other family law matters visit DarlingFirm.com. This blog is for informational purposes only and not intended to replace the advice of an attorney.