Opinion
No. FA 01-0385468S
September 1, 2011
MEMORANDUM OF DECISION
The marriage between the plaintiff (wife), Katherine Lieberman (Wachtel), and the defendant (husband), Mark Lieberman, was dissolved by way of a dissolution of marriage (Fischer, J.) on October 19, 2004. In conjunction with this judgment, the parties entered into a Separation Agreement (Agreement) which provided that the defendant was to pay the plaintiff alimony as a percentage of his gross income. "Gross income" is defined in the Agreement.
The plaintiff now moves the court to grant her post-judgment petition for a bill of discovery. The purpose of this motion is to review the operating agreements and tax returns from two limited liability companies, of which the defendant is a member. These documents are essential because they would assist her in determining the total amount of income that the defendant was entitled to receive from these LLCs. After review of these documents, if it is determined that the defendant receives more "income" than he currently pays alimony on, the plaintiff plans to submit an appropriate motion.
The defendant objects to the motion and moves to dismiss with prejudice on the grounds that the plaintiff is not statutorily entitled to post-judgment discovery at this time because there is no action currently pending. He argues, according to Oneglia v. Oneglia and pursuant to General Statutes § 52-156(a), that at this point in the proceedings, the plaintiff cannot submit a petition for post-judgment discovery because there is no "civil action pending." In this case, a civil action will be pending if the judgment of dissolution is reopened; however here, the judgment remains unopened. As such, there is no "civil action pending" and the plaintiff is not statutorily entitled to post-judgment discovery.
In family matters, the trial court engages in a balancing of equities between the parties. Oneglia v. Oneglia, 14 Conn.App. 267, 272, 540 A.2d 713 (1988). Because this balacing test falls within the sole discretion of the trial court, "equitable remedies are not bound by formula but are molded to the needs of justice." Id.
A bill of discovery is an independent, equitable action for discovery, and may be sustained "notwithstanding the statutes and rules of court relative to discovery." Berger v. Cuomo, 230 Conn. 1, 5-7, 644 A.2d 333 (1994). In order for the petition to be granted, it must be demonstrated that the requested documents are "material and necessary for proof of, or [are] needed to aid in proof of or in defense of, another action already brought or about to be brought." Berger v. Cuomo, supra, 230 Conn. 6. Discovery cannot be used to conduct a "fishing expedition" into the defendant's affairs — it is confined only to information that would be "reasonably necessary" to the plaintiff's action. Journal Pub. Co., Inc. v. Hartford Courant Co., 261 Conn. 673, 681, 804 A.2d 823 (2002).
"A plaintiff must be able to demonstrate good faith as well as probable cause that the information sought is both material and necessary to [its] action." H L Chevrolet, Inc. v. Berkley Ins. Co., 110 Conn.App. 428, 434, 955 A.2d 565 (2008) quoting Journal Pub. Co., Inc. v. Hartford Courant Co., supra, 261 Conn. 680. "Probable cause is the knowledge of facts sufficient to justify a reasonable man in the belief that he has reasonable grounds for presenting an action." Cosgrove Development Co. v. Cafferty, 179 Conn. 670, 671, 427 A.2d 841 (1980).
The court rejects the defendant's argument that the plaintiff is not statutorily entitled to discovery for several reasons. First and foremost, the defendant's significant reliance on Oneglia is misplaced. There, the plaintiff attempted to void the original judgment of dissolution on the grounds that it was ordered fraudulently. Oneglia v. Oneglia, supra, 14 Conn.App. 270. However where there is no attack on the original judgment, as is the case here, discovery between the parties should be allowed. See Rinaldi v. Rinaldi, Superior Court, judicial district of Waterbury at Waterbury, Docket No. 060084 (May 22, 1992) ( 6 Conn. L. Rptr. 466). Second, the statutory language relied on by the defendant does not support his position. General Statutes § 52-156(a) states in relevant part that "[a]ny person who desires to preserve the testimony of any witness, concerning any matter which is or may be the subject of a civil action, may present a petition in writing to any judge of the superior court . . ." (Emphasis added.) Even if no civil action is pending now, a civil action may be pending, i.e., a motion for contempt. This is sufficient to satisfy the statutory requirements in § 52-156(a). Finally, since the petition for a bill of discovery asks the court to invoke its equitable remedies, the petition can be sustained "notwithstanding the statutes and rules of court relative to discovery." Berger v. Cuomo, supra, 230 Conn. 6, citing 1 J. Pomeroy, Equity Jurisprudence (5th Ed. 1941) § 193.
It should also be noted that the plaintiff has demonstrated probable cause to substantiate her petition for a bill of discovery. There is evidence indicating that the defendant may be harboring additional income from the plaintiff. The requests to view the defendant's tax returns and schedule Ks for 2007 and 2010, as well as the request to depose the defendant as to his relationship with his LLCs, are reasonably necessary to the plaintiff's possible motion for contempt. In sum, all the facts are sufficient to show that the plaintiff has reasonable grounds for presenting her motion.
Accordingly, the plaintiff's post-judgment petition for a bill of discovery is granted.