Opinion
DOCKET NO. A-2657-14T1
07-18-2016
NICHOLAS MASCIO, Plaintiff-Appellant, v. KAREN MASCIO, Defendant-Respondent.
Hagner & Zohlman, LLC, attorneys for appellant (Thomas A. Hagner, on the brief). Respondent has not filed a brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Vernoia. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FM-04-1195-11. Hagner & Zohlman, LLC, attorneys for appellant (Thomas A. Hagner, on the brief). Respondent has not filed a brief. PER CURIAM
In this post-judgement matrimonial action, plaintiff Nicholas Mascio appeals that portion of a November 7, 2014 Family Part order, denying his request to quash paragraphs one, two, three, and four of a September 10, 2014 subpoena duces tecum. The subpoena was sought by defendant Karen Mascio, and required that plaintiff produce certain bank records, credit card statements, and documents related to his procurement of a loan. Plaintiff argues, in effect, that the challenged portion of the judge's order is not based upon good cause and violates his legitimate expectation of privacy. We disagree and affirm.
We briefly set forth the facts, which are essentially uncontested. In July 2013, the court sanctioned plaintiff for misappropriating money from a retirement account and entered a judgment against plaintiff and in defendant's favor in the amount of $174,989.70.
By amended order dated August 28, 2014, the Family Part found plaintiff to be in violation of the final judgment of divorce by not providing defendant with his quarterly income statements for 2013 and 2014. On September 10, 2014, counsel for defendant served a subpoena, which in pertinent part directed that plaintiff produce certain bank and credit records, and other records related to a loan. Plaintiff filed a motion to quash the subpoena and, when that motion was denied, filed a motion for reconsideration that was also denied.
Plaintiff argues that the ordered production of his records violates a constitutional right to privacy and that the records are irrelevant to defendant's efforts to collect on her judgment. Plaintiff also asserts the court erred because the records were subpoenaed for use in an ability to pay hearing that the court later determined was unnecessary. We note that although the cover letter that accompanied the subpoena indicated that the information was requested for use in the ability to pay hearing, on November 7, 2014, defendant's counsel advised the court that the information was sought in connection with efforts to collect on the outstanding judgment. The court's decision to not have an ability to pay hearing, therefore, had no bearing on the validity of the subpoena.
Consideration of the issues presented on appeal is guided by some abiding principles. "Decisions of trial courts on discovery matters are upheld unless they constitute an abuse of discretion." In re Custodian of Records, Criminal Div. Manager, 214 N.J. 147, 162-163 (2013) (citing Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011)). Therefore, "[w]e generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J. 296 (2005).
We also "accord great deference to discretionary decisions of Family Part judges." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012). However, we accord no deference to the judge's interpretation of applicable law, which we review de novo. In re Custodian of Records, supra, 214 N.J. at 163 (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
The test for the validity of a subpoena duces tecum was stated in State v. Cooper, 2 N.J. 540, 556 (1949). See also Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 1:9-2 (2016). A valid subpoena must specify its subject "with reasonable certainty, and there must be a substantial showing that [the records] contain evidence relevant and material to the issue." Cooper, supra, 2 N.J. at 556. See Welch v. Welch, 401 N.J. Super. 438, 445 (Ch. Div. 2008) (noting courts will allow discovery when good cause shown); Depos v. Depos, 307 N.J. Super. 396, 400 (Ch. Div. 1997) (finding that, except as provided for by Rule 5:5-1(a)-(c), discovery in civil family actions may be authorized by the court only upon a showing of "good cause").
We discern no error in the court's determination requiring plaintiff to disclose the requested information. Here, the records will provide information regarding plaintiff's income, assets, and spending, and are therefore relevant to defendant's efforts to collect on her judgment. Moreover, plaintiff does not have a constitutional right to withhold disclosure of the information under the circumstances presented. It was therefore appropriate to compel plaintiff to supply the information to assist in defendant's efforts to collect the judgment. See Lepis v. Lepis, 83 N.J. 139, 157-58 (1980) (noting that "[b]ecause financial ability of the supporting spouse may be crucial to the proper disposition of a motion for modification," a "prima facie showing of changed circumstances" satisfied the good cause required to compel disclosure of personal financial information, including tax returns).
Further, plaintiff contends the court incorrectly ruled that he was estopped from asserting a right to privacy to the records. Although this issue is moot because plaintiff does not have a right to privacy that bars production of the information, the record reflects that the court did not deny plaintiff's motion based upon a finding that plaintiff was estopped from challenging the validity of the subpoena.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION