In Stamberg v Stamberg, the Plaintiff Husband sought a reduction in alimony payments based on the change of circumstances presented by a medical condition which caused him to lose his employment. In submitting his financial information to the court, Husband included his social security income, his disability payments, and his pension payments. Defendant Wife sought discovery as to Husband’s IRA distributions as he did not disclose same in his application. Husband argued that since his IRA was already subject to equitable distribution, that Wife had received her share and thus such distributions were not subject to an income calculation for the purposes of alimony. Complicating matters, Wife had also received an inheritance which Husband claimed was substantial. Neither denied their additional sources of income and both sought discovery as to same.
The lower court denied Husband’s request to terminate alimony and his discovery request as to Wife’s finances. Husband appealed arguing that the trial court should have granted his termination request or at the very least, granted him a hearing as to the genuine issue of material fact. The appellate division reversed but for different reasons than put forth by the Husband. The appellate division agreed with the trial court that Husband had never demonstrated that his illness has substantially impaired his ability to support himself. Absent that showing, the ordering of a hearing was improper, and Husband could make an application again with full disclosure of his income.
However, the Appellate Division found the trial court failed to address Husband’s claim of changed circumstances as to the Wife’s inheritance. Lepis does not hold that a party’s application must relate to their own changed circumstances. Applications can be made based on one, or as here, both parties’ changed circumstances. The Court also offered a practitioner’s tip: Husband needed to do more than just allege an inheritance existed but not as much as produce the actual will. It would be enough to provide circumstantial evidence by way of certifying that he had knowledge of his former in-laws’ lifestyle and means. Wife would then only have to admit or deny the existence of the inheritance. Once that burden is met, then it is proper for a court to order discovery.
