Levin v. Levin

Decision Date20 June 1974
PartiesRitann A. LEVIN, Plaintiff-Respondent, v. Milton LEVIN, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division

Ronald A. Breslow, Totowa, for defendant-appellant (Marcus, Rosen, Breslow & Levy, Totowa, attorneys).

David L. Horuvitz, Bridgeton, for plaintiff-respondent (Horuvitz & Perlow, Bridgeton, attorneys).

Before Judges CONFORD, HANDLER and MEANOR.

The opinion of the court was delivered by

MEANOR, J.A.D.

Plaintiff sues for divorce on, among other grounds, defendant's adultery. She served interrogatories designed to elicit facts in support of that charge, specifically seeking details concerning defendant's and cohabitation with the asserted paramour. Defendant refused to answer, claiming his privilege against self-incrimination. The trial court ordered that responsive answers be given, and we granted defendant leave to appeal from that order.

There can be no doubt that responsive answers to plaintiff's interrogatories might well constitute evidence supporting defendant's conviction on a charge of fornication. N.J.S.A. 2A:110--1; State v. Clark, 58 N.J. 72, 275 A.2d 137 (1971); State v. Lutz, 57 N.J. 314, 272 A.2d 753 (971). Thus, defendant legitimately claimed the privilege in refusing to answer the interrogatories and it was error to require him to answer. Evid.R. 25; N.J.S.A. 2A:84A--19; Hoffman v. United States, 341 U.S. 479, 71 S.Ct. 814, 95 L.Ed. 1118 (1951).

Defendant, however, remains subject to the same sanctions as any other litigant who refuses to make discovery, R. 4:23, short of being held in contempt for refusal to answer. It appears to be the general, although not the universal, rule that failure to make legitimate discovery in a civil case on the ground of self-incrimination permits imposition of the usual sanctions. Mahne v. Mahne, 124 N.J.Super. 23, 304 A.2d 577 (Ch.Div.1973), certif. granted 64 N.J. 326, 315 A.2d 414 (1973); Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J.Super. 527, 231 A.2d 854 (App.Div.1967), certif. den. 50 N.J. 404, 235 A.2d 897 (1967); Annotation, 'Dismissing action or striking testimony where party to civil action asserts privilege against self-incrimination as to pertinent question,' 4 A.L.R.3d 545 (1965).

As has been mentioned elsewhere, State v. Clark, Supra, prosecutions for fornication are rare. Defendant may wish to revise his position now that the imposition of sanctions because of failure to answer is a certainty. Therefore, defendant will have 20 days from the date hereof to submit responsive answers to plaintiff's interrogatories. Failure to do so shall result in sanctions, the nature of which we leave to the trial court, but direct that at least the defense to plaintiff's charge of adultery shall be suppressed. We add that in civil actions an adverse inference may be drawn...

To continue reading

Request your trial
4 cases
  • Mahne v. Mahne
    • United States
    • New Jersey Supreme Court
    • 19 Noviembre 1974
    ...Note, 'Use of the Privilege Against Self-Incrimination in Civil Litigation,' 52 Va.L.Rev. 322 (1966); Cf. Levin v. Levin, 129 N.J.Super. 142, 322 A.2d 486 (App.Div.1974); Duratron Corp. v. Republic Stuyvesant Corp., 95 N.J.Super. 527, 231 A.2d 854 (App.Div.), certif. den. 50 N.J. 404, 235 A......
  • Meyer v. Second Judicial Dist. Court In and For Washoe County
    • United States
    • Nevada Supreme Court
    • 28 Febrero 1979
    ...and certain testimony precluded); Costanza v. Costanza, 66 N.J. 63, 328 A.2d 230 (1974) (testimony precluded); Levin v. Levin, 129 N.J.Super. 142, 322 A.2d 486 (1974) (suppression of related defense); Berner v. Schlesinger, 11 Misc.2d 1024, 178 N.Y.S.2d 135 (1957), Aff'd 6 A.D.2d 781, 175 N......
  • Alvarez v. Sanchez
    • United States
    • California Court of Appeals Court of Appeals
    • 25 Julio 1984
    ...previous testimony (Costanza v. Costanza (1974) 66 N.J. 63, 328 A.2d 230); suppression of related defenses (Levin v. Levin (1974) 129 N.J.Super. 142, 322 A.2d 486); striking of defendant's previous testimony (Berner v. Schlesinger (1957) 11 Misc.2d 1024, 178 N.Y.S.2d 135; Annest v. Annest (......
  • Hackes v. Hackes
    • United States
    • D.C. Court of Appeals
    • 17 Junio 1982
    ...the Fifth Amendment to prevent discovery, he is subject to non-criminal sanctions. See id. at 56, 328 A.2d at 226; Levin v. Levin, 129 N.J.Super. 142, 322 A.2d 486 (1974). The trial court has a broad choice of sanctions to impose when dealing with the good faith exercise of privilege in civ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT