The recent decision in the case captioned R.S. v. W.E., Del Fam. Ct., No. CN10-05981, Kerr, J. (Jan. 4, 2017), warns Family Court litigants that failure to comply with discovery can have consequences. In this case, R.S. (“Wife”) was seeking (among other things) alimony. Leading up to the hearing date her ex-husband, W.E. (“Husband”) issued discovery asking for the production of documents. Husband asked for documents related to her income. In addition, he asked for an updated list of her expenses and “[a]ll documents supporting each and every monthly current expenses you wish to have the Court consider in calculating alimony….” Id. at 1. Despite the issuance of an Order on June 10, 2016 compelling the production of documents, Wife failed to produce the documents regarding her expenses. With regard to her income, she produced only a profit and loss statement from her accountant with no supporting documentation.
When the parties appeared for the ancillary hearing on January 4, 2017, Husband made a motion in limine to preclude Wife from presenting evidence relating to her income or her monthly expenses. The Court granted Husband’s motion stating:
Pursuant to 13 DEL. C. § 1512, the Court may award alimony to a dependent party. While the court can alleviate the prejudice to Husband in Wife’s failure to provide supporting documentation for her profit and loss statement by either attributing Wife with her gross receipts or attributing Wife with income from the Wage and Labor Survey, the same cannot be done for her expenses. Husband is severely prejudiced by Wife’s failure to provide documentation pursuant to the Requests on her expenses. Husband would have been able to prepare for questions regarding her expenses had the documents been provided. Wife did not even provide a bare list of expenses to Husband’s counsel or to the Court in the pretrial. If there were a lesser sanction which would address Wife’s failure without prejudice the Court would enter the lesser sanction. However, there is no lesser sanction.
Thus, the Court cannot permit Wife to testify as to her expenses. Without evidence as to Wife’s monthly expenses, dependency cannot be established as Wife’s reasonable needs cannot be determined. Wife was informed by the Court at the pretrial conference that she needed to provide the opposing party with certain documentation. In addition, two Motions to Compel were filed against Wife during a time when Wife was represented by Counsel. Therefore, the Court finds that Wife was aware that she needed to produce documentation relating to her income and expenses but failed to do so. Id. at 3 – 4.
Since the Court was unable to determine Wife’s reasonable needs, alimony was set at $0 per month.
The entire Letter Decision and Order may be found here.
Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or email@example.com.