Hunter v. Hunter

• Decision Date: 12 April 1960
• Citation: 10 A.D.2d 291,198 N.Y.S.2d 1008
• Parties: Ludmilla HUNTER, Plaintiff-Respondent, v. Allan B. HUNTER, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1008

198 N.Y.S.2d 1008

10 A.D.2d 291

Ludmilla HUNTER, Plaintiff-Respondent, v. Allan B. HUNTER, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

April 12, 1960.

Milton M. Bergerman, New York City, of counsel (Bergerman & Hourwich, New York City, attys.), for defendant-appellant.

Michael B. Atkins, New York City, of counsel (Rothenberg, Atkins & Koss, New York City, attys.), for plaintiff-respondent.

Before BREITEL, J. P., and RABIN, M. M. FRANK, McNALLY and STEVENS, JJ.

BREITEL, Justice Presiding.

This appeal involves the recurring problem of allowing examinations before trial in matrimonial cases to ascertain the income and assets of a defendant husband.

The examination was granted at Special Term because the husband admitted by his answer one of the grounds, namely abandonment, asserted by the wife for obtaining a judgment of separation. Since only the amount of the support award remained as a contested issue, it was held that the wife was entitled to a financial examination of the husband. It was thus assumed that the wife had made out the special circumstances, necessary in a matrimonial action, to obtain such pre-trial examination. While in recent years some authority has developed for this result, the rule requiring a showing of special circumstances rests on no such narrow basis. Consequently, for the reasons later discussed in detail, the order should be reversed and plaintiff wife's motion to examine defendant husband as to his income and assets should be denied.

Notable in this case is that plaintiff wife does not disclaim sufficient knowledge of the husband's assets and income before the separation. What she seeks to ascertain is the extent of his post-separation assets and income. In considering the wife's right to a financial examination of the husband, it is evident that such right and its scope will depend upon the substantive principles which define a wife's right to support.

The parties were married in 1939, and there have been no children. They separated in April, 1958. This was some four months after the husband became a member of a will-known investment banking firm.

When the parties separated the husband started to send the wife $300 per month, or paid bills incurred by her amounting to that sum. In May, 1959 when he ascertained that the wife's checking account was drawn down to a low figure he voluntarily deposited $2,500 to build up the balance. Moreover, at the same time, the husband also wrote his wife saying that if the arrangements were not satisfactory he wished to be advised.

In January, 1960 the husband increased the disbursement to the rate of $600 per month. At all times he has paid the rent for the Manhattan apartment occupied by his wife. In addition, he turned over to her a securities account, of the approximate value of $65,000, which he claims to have established in her name, but which she asserts was started with an investment of her own.

The husband asserts flatly that he is now maintaining his wife at a level of support greater than that which subsisted immediately prior to the separation. The wife, on the other hand, does not assert (except in the most conclusory terms) that the level of support maintained by the husband since the separation in 1958 is less than the standard of living which obtained immediately prior to the separation. The wife disposes of that possible issue in her reply affidavit simply by saying:

'I wish, too, to dispel any illusion that the $600 per month which my husband gives me now is in accordance with our standard of living. I have estimated that I need at least $25,000 per year for myself to maintain myself in accordance with our prior standard.'

At the same time no information is provided as to the aggregate amount in dollars which constituted the level of support prior to the separation. Nor are the constituent amounts submitted, except as to rent and a lump sum for clothing. Indeed, the record in this case contains no flat assertion by either party as to the husband's aggregate income before or after the separation.

The wife does not dispute that until recently she was fully cognizant of the husband's income and assets. In fact, through the taxable year 1958, the parties filed joint income tax returns, and the wife has recently been furnished copies of them. Because in 1958 the husband became a junior partner in his business the wife no longer knows what his income is, or what assets he has recently acquired. The husband concedes that his 1959 income would be at least as great as that during 1958.

Apart from these general assertions, and the meager reference in her reply affidavit to rent, clothing, and a summer home in Connecticut owned by the parties, the wife makes no effort to relate either expenses or income to the standard of living immediately prior to the separation. Nor does she raise an issue as to the adequacy of such standard of living--either for the past or the present.

On this showing there is insufficient basis to grant the examination.

This Court, by rule (Trial Term Rule XI, subd. 7) and by decision (Hurwitz v. Hurwitz, 3 A.D.2d 744, 160 N.Y.S.2d 938; Garfinkel v. Garfinkel, 2 A.D.2d 965, 157 N.Y.S.2d 426; Wenglinsky v. Wenglinsky, 282 App.Div. 1015, 126 N.Y.S.2d 249; Field v. Field, 281 App.Div. 657, 117 N.Y.S.2d 115; Tausik v. Tausik, 280 App.Div. 887, 115 N.Y.S.2d 654), has made it quite clear that, despite the broadening of the scope for examinations before trial, there are, nevertheless, certain classes of actions in which examinations will be withheld unless there is a showing of special circumstances.

The exception is partly based upon the common experience that in certain classes of actions the burden of a pre-trial examination may be so costly, time-consuming, and unproductive that the examination should be withheld in the absence of a showing of substantial merit. Similarly, in other classes of actions, of which the matrimonial action is typical, the pre-trial examination too often becomes an exacerbating circumstance. Thus, it may unduly prevent the reconciliation of the parties or, even if reconciliation is not likely, make future relationships, which must persist despite separation, unnecessarily bad. Moreover, in some matrimonial actions it also occurs that the examination may serve the ulterior purpose of bringing unfair collateral pressure on the husband in relation to his business, his employment, his competitors, his creditors, or even the taxing authorities (see e. g., Plohn v. Plohn, 281 App.Div. 1056, 121 N.Y.S.2d 336).

Nevertheless, despite the cautious view with regard to granting examinations before trial in matrimonial actions, the courts have not hesitated to allow an examination if it will primarily serve a legitimate One such purpose would be to provide a wife with the necessary information to establish the pre-separation standard of living, the adequacy of such standard, or the present ability of the husband to maintain the appropriate standard, provided there is a showing that because of her ignorance of the facts or for other reasons it is desirable that she elicit such information before trial. Examinations with respect to these matters are permitted only because, substantively, they are relevant to the amount of the ultimate award to which the wife may be entitled. The applicable principles may be briefly stated.

It has been the settled rule that an examination before trial as to financial condition will not be available if the right to support is contested and undetermined (Van Valkenburgh v. Van Valkenburgh, 149 App.Div. 482, 133 N.Y.S. 942; cf. Galusha v. Galusha, 138 N.Y. 272, 281-282, 33 N.E. 1062, 1063-1064; Grossman, New York Law of Domestic Relations, §§ 590, 811-814). But the converse, namely, that a...