Stern v. Stern

• Decision Date: 16 May 1972
• Parties: Bernice STERN, Plaintiff-Appellant, v. Charles Alvin STERN, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 334

332 N.Y.S.2d 334

39 A.D.2d 87

Bernice STERN, Plaintiff-Appellant, v. Charles Alvin STERN, Defendant-Respondent.

Supreme Court, Appellate Division, First Department.

May 16, 1972.

Sidney Rothenberg, New York City, of counsel (Rothenberg & Kalman, New York City, attys.), for plaintiff-appellant.

Philip F. Solomon, New York City, of counsel (Samuel B. Solomon, New York City, with him on the brief; Solomon & Solomon, New York City, attys.), for defendant-respondent.

Before MARKEWICH, J.P., and MURPHY, McNALLY, EAGER and CAPOZZOLI, JJ.

McNALLY, Justice.

We are called upon to decide whether or not a pre-trial examination of a husband's finances should be granted in an uncontested matrimonial action in the light of Plancher v. Plancher, 35 A.D.2d 417, 317 N.Y.S.2d 140, aff'd 29 N.Y.2d 880, 328 N.Y.S.2d 444, 278 N.E.2d 650, in the absence of a showing of special circumstances indicating it would be improper to grant such a disclosure.

The plaintiff-wife appeals from an order of Rosenberg, J. denying her application to examine the defendant-husband before trial with respect to his income and means.

Plaintiff-wife obtained a judgment of separation in May 1966 on the grounds of abandonment, failure of support, adultery and cruel and inhuman treatment. Alimony was fixed at $100 a week, apparently based on the fact that the defendant earned approximately $15,750 plus a participation in a profit-sharing plan.

Plaintiff now claims that her husband is a vice president of the firm which employs him and that his income has substantially increased. She alleges that she is completely in the dark as to the extent of the husband's assets and means.

In reply, defendant's counsel submits an affidavit in which he states the husband is nothing more than an ordinary employee and attaches a copy of his W--2 Form for 1971 and a copy of the 1970 income tax return.

Subsequent to the separation judgment, it appears that defendant had sufficient means to buy 100 shares of stock for a sum in excess of $10,000. Defendant has failed to submit any information as to his present stock holdings or securities or other assets.

Plaintiff advances the following reasons for the relief sought:

1. The alimony awarded previously granted in the separation action is not binding on the Court in this action for divorce.

2. The only issue in this action is the amount of support to be awarded to plaintiff.

3. Plaintiff has no means of ascertaining her husband's income or resources in the six years since their separation.

4. Plaintiff and defendant have been married for thirty years. Their one child is emancipated.

5. After the judgment of separation, defendant obtained an ex parte Mexican divorce and remarried.

6. Plaintiff is age 57 years and is not in the best of health.

7. Plaintiff has been unable to meet the increased cost of living and at the same time pay taxes on her only income--the money she receives from defendant.

The court below denied the application on the ground that while the husband's income may have increased since the entry of the decree, there is no factual showing of a change in the wife's financial needs. Consequently an examination is not warranted.

In Plancher v. Plancher, Supra, our Court of Appeals affirmed the Appellate Division, Second Department, ordering a pre-trial financial examination. That opinion reads in pertinent part as follows (p. 422, 317 N.Y.S.2d p. 145):

'We have held that ordinarily disclosure of a husband's finances should be directed, where the right of a decree is not seriously resisted and no special circumstances exist indicating that it would be improper to grant such disclosure (Campbell v. Campbell, 7 A.D.2d 1011, 184 N.Y.S.2d 479; Pearson v. Pearson, 30 A.D.2d 927, 294 N.Y.S.2d 984) . . .. The defendant has submitted no countervailing circumstances which render improper the disclosure of her financial condition. In this perspective, the disclosure requested by the interrogatories plainly serves the objective of adequate preparation of the parties for trial and the orderly and expeditious conduct of the trial.'

In the case at bar, the defendant-husband does 'not seriously resist' the action for divorce; he affirmatively admits the allegations of the complaint and joins in plaintiff's prayer for judgment in her favor. Nor does he show any special circumstances indicating that it would be 'improper' to direct disclosure of his present income and means.

Heretofore, this Court has consistently held that an examination before trial as to finances will not be granted in a matrimonial action in the absence of a showing of special circumstances, and that the mere fact that the action is uncontested does not constitute a special circumstance (Hunter v. Hunter, 10 A.D.2d 291, 198 N.Y.S.2d 1008, rearg. and lv. to app. den. 10 A.D92d 937, 202 N.Y.S.2d 971; Nomako v. Ashton, 20 A.D.2d 331, 247 N.Y.S.2d 230; La Mura v. La Mura, 22 A.D.2d 658, 253 N.Y.S.2d 304. The reason for such policy was that in matrimonial actions experience showed that the 'pre-trial examination too often becomes an exacerbating circumstance' (Hunter v. Hunter, Supra, 10 A.D.2d at p. 294, 198 N.Y.S.2d at p. 1012). In the Second Department, in an uncontested matrimonial action the party sought to be examined has the burden of showing special circumstances warranting the denial of the examination (Plancher v. Plancher, Supra; Campbell v. Campbell, 7 A.D.2d 1011, 184 N.Y.S.2d 479. See also Hochberg v. Hochberg, 63 Misc.2d 77, ...