Bill S. v Marilyn S.
Annotate this CaseDecided on April 7, 2005
Supreme Court, Nassau County
BILL S., Plaintiff,
against
MARILYN S., Defendant.
201266/2004
Ruth C. Balkin, J.
Upon the foregoing papers and the following reasons, the motion by Defendant Marilyn S. (hereinafter "Wife"), to quash certain subpoenas duces tecum, is granted in part.
In April 2004, Plaintiff Bill S. (hereinafter "Husband") commenced the instant matrimonial action in Nassau County Supreme Court seeking a divorce and ancillary relief against his Wife. Following the completion of a Preliminary Conference, discovery and evaluations have been proceeding in this complicated and contentious matrimonial, which involves contested divorce grounds, custody issues, several businesses and substantial assets.
During the course of that discovery, the Husband has served undated Subpoenas Duces Tecum on, inter alia: Nextel Communications, pertaining to telephone records of non-party [*2]Michael R. identified by the Husband as one of the Wife's paramours; AT&T Wireless,[FN1] pertaining to the Wife's phone number and non-party Jose B.'s number identified as another of the Wife's paramours; America Online ("AOL") Legal Department, seeking three years of "instant messenger chat logs" between the Wife and Mr. R.; and finally, Trac-Fone Wireless, seeking the Wife's telephone records for the past three years. The reason set forth in the Subpoenas for production of said material is merely that "the non-party witness has material and relevant information for the prosecution and defense of issues raised in the action."
By Order to Show Cause returnable February 4th, 2005, the Wife moves for an order by this Court quashing these four Subpoenas pursuant to CPLR 2304, arguing that the Husband is merely seeking inappropriate discovery to bolster his adultery causes of action against the Wife, and engaging in a course of conduct designed to harass her, her relatives and friends. She also seeks sanctions against this conduct. The Husband opposes any attempts by the Wife to obstruct the discovery process, alleging that the telephone records and chat logs are relevant and material to the issues of child custody and equitable distribution, which records will particularly demonstrate that the Wife spent much of her time on the phone and computer "communicating with her many lovers," thereby belying her fitness for sole custody. This Court disagrees.
It is well settled that broad financial disclosure is necessary in matrimonial actions pursuant to equitable distribution because the entire economic history of the marriage must be open for inspection (see Levy v Grandone, 8 AD3d 630, 631; Gellman v Gellman, 160 AD2d 265, 267; Kaye v Kaye, 102 AD2d 682, 686). Both parties are thus entitled to a searching exploration of each other's assets (see Domestic Relations Law 236[B][4][FN2]; Goodson v Goodson, 135 AD2d 604, 605). However, they are not entitled to pre-trial discovery with respect to the issue of grounds for the divorce or marital fault (see Corsel v Corsel, 133 AD2d 604, 605; Ginsberg v Ginsberg, 104 AD2d 482; McMahan v McMahan, 100 AD2d 826), or to disclosure against non-parties without "showing special circumstances, i.e., that the information sought to be discovered is material and necessary and cannot be discovered from other sources" (Cerasaro v Cerasaro, 9 AD3d 663, 665; see Paterson v St. Francis Ctr. at the Knolls, 249 AD2d 457; Newman v Lotwin, 247 AD2d 318; Sand v Chapin, 246 AD2d 876, 877).
Applying these principles to the matter at bar and based on this Court's broad discretion in managing pre-trial discovery (see Myers v Myers, 255 AD2d 711, 713), the Subpoenas at issue must be quashed. Not only has the Husband failed to establish that the telephonic and internet information sought about the Wife is relevant and material to this action, but no special circumstances permitting non-party disclosure has been shown. The Husband claims that the [*3]Wife's telephone logs and AOL instant messages chat logs would be relevant to the issue of custody and equitable distribution. While the Wife's fitness for custody is certainly in issue herein, this Court is not persuaded that any purpose would be served by permitting disclosure of these telephonic and AOL logs. Indeed, these logs or lists will only show that the Wife was on the phone or online with friends and relatives during certain periods of time; they would not reveal the nature of the conversations or her state of mind. The Court does not believe these telephone and computer records are necessary for a custody determination.
Nor are there sufficient allegations that the information would assist the Court in equitably distributing the parties' assets. Although the body of the electronic messages themselves may be discoverable for financial purposes (see Etzion v Etzion, ___Misc 2d___, 2005 NY Slip Op 25115), they are not so to establish the merits of the matrimonial action. Contrary to the Husband's arguments, this Court finds that the attempt to utilize the Subpoenas to obtain the subject information is overbroad and improperly seeks disclosure directly on the issue of marital fault by attempting to elicit phone and chat logs relating to alleged paramours of the Wife. Certainly, the phone records or chat logs of Messrs. R. and B. do not appear either material or relevant to anything in this case. In any event, the Husband is already in possession of the contents of several electronic mails and messages between the Wife and Messrs. R. and B., which have been repeatedly published in papers before this Court.
Despite the questionable relevance of these Subpoenas at this time, the Wife is not entitled to either counsel fees or sanctions pursuant to 22 NYCRR 130-1.1. Sanctions are warranted only when a party or attorney has abused the judicial process or has caused the unnecessary expense of the court's resources to respond to a wholly frivolous motion, one that is completely without merit in law and which cannot be supported by any reasonable argument (see Drummond v Drummond, 305 AD2d 450, 451-452; Levy v Carol Mgmt. Corp., 260 AD2d 27, 34; see, e.g. Bell v State of New York, 96 NY2d 811, 812). Here, the Husband's subpoenas and arguments do not raise to the level of lacking any merit or frivolousness warranting sanctions (see Williams v Williams, 215 AD2d 980, 981; Brancoveanu v Brancoveanu,179 AD2d 614).
Accordingly, the Wife's motion is granted in part and denied in part. The subject undated Subpoenas Duces Tecum are hereby quashed. The parties are hereby reminded of the discovery schedule and that should any problem with discovery arise, counsel are directed to initially contact Chambers in order to avoid costly motion practice. Any motion subsequently submitted without contacting Chambers would be summarily denied.
This constitutes the decision and order of the Court.
ENTER:
Dated: April 7, 2005
Mineola, New YorkJ.S.C.
Footnotes
Footnote 1: By Short Form Order dated February 25, 2005, this Court granted a motion to quash certain subpoenas insofar as they involved telephone records of the Wife's father, Carlos K., and ABC, Inc. To the extent the within Order to Show Cause seeks the same or similar relief heretofore granted, the parties are referred to that prior Order.
Footnote 2: Domestic Relations Law § 236(B)(4) provides for "Compulsory financial disclosure" as follows: "in all matrimonial actions and proceedings in which alimony, maintenance or support is in issue, there shall be compulsory disclosure by both parties of their respective financial states. No showing of special circumstances shall be required before such disclosure is ordered."
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
