In a recently published Superior Court opinion, a Monmouth county judge found that unauthorized discovery in a post judgment matter is inadmissible and against the rules of discovery in a matrimonial matter. In the matter of Welch v. Welch, the defendant filed a post judgment application for a change of custody of the parties’ minor child. His application was based upon his concerns for the plaintiff/mother’s mental well being and hence ability to properly care for the parties’ child. Two days prior to filing his motion seeking a change in custody, defendant’s attorney issued a Subpoena Duces Tecum and Ad Testificandum upon the Marlboro Township police department. This subpoena requested copies of all documentation pertaining to incidents related to the plaintiff as well as requesting the appearance of an officer on the return date of the motion to possibly give testimony. Plaintiff’s counsel filed a motion to prohibit the release of these documents, alleging the request was made in violation of the Court Rules and also sought sanctions against defendant and his attorney as well as counsel fees.
Ultimately, the court refused to consider any of the documents turned over by the police department asserting that the documents had been obtained in violation of court rules. The court also assessed counsel fees against the defendant but did not issue sanctions.
The court based its reasoning, in part, upon the notion that discovery is limited in post judgment applications. The court found that without the scheduling of a plenary hearing or any further proceedings, defendant’s subpoena was unnecessary, harassing and impermissible. The court went on to state that “post-judgment matrimonial motions are summary in nature and are resolved with little or no discovery.”
What is troubling about this trial court decision is the fact that in contested post judgment custody matters, how can a court ignore the admissibility of relevant evidence? Does that not contradict the court’s main objective, which is the child’s best interest? What about the court’s parens patriae duty to protect children?
The decision appears to be inconsistent with the the Appellate Division’s 2002 holding in Tartaglia v. Paine Webber, Inc., which held that illegally obtained evidence in a civil matter was admissible (though a party could be sanctioned for illegally obtaining it). On a final note, police records are public records. Is the court’s finding in Welch punitive, insomuch as defendant was assessed counsel fees for issuing a subpoena for the release of what is public record.
It should be noted that the finding in Welch pertains only to post judgment matters. Discovery in pre-trial matrimonial cases remains broad (See R. 5:5-1). It would not be surprising if this case is appealed.