Pentecost v. Pentecost

125 A.D.2d 558, 510 N.Y.S.2d 1, 1986 N.Y. App. Div. LEXIS 62851

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 1986
• Status: Published

Opinion

—In a matrimonial action, the defendant husband appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Kutner, J.), dated October 30, 1985, as denied his application for a protective order to prohibit discovery of his postseparation agreement financial records.

Ordered that the order is reversed insofar as appealed from, with costs, and the defendant’s motion for a protective order is granted to the extent of limiting the financial records he is to produce at deposition to those items concerning his financial condition from January 1980 through May 1981, the date of execution of the separation agreement between the parties. The deposition of the defendant at which he is to produce the items in question shall be held at a time and place to be set forth in a notice of not less than 10 days to be given by the plaintiff.

The defendant’s present financial condition is not relevant to the plaintiffs claim that the separation agreement is null and void on the ground of fraud or unconscionability and will not become an issue unless and until the separation agreement or its financial provisions is set aside (see, Schisler v Schisler, 106 AD2d 441; Wiecek v Wiecek, 104 AD2d 935; Potvin v Potvin, 92 AD2d 562). Moreover, the plaintiff has not set forth sufficient allegations with respect to her demand for increased child support to warrant discovery of the defendant’s present financial condition (see, Lazarus v Lazarus, 114 AD2d 1012). Mangano, J. P., Bracken, Niehoff and Spatt, JJ., concur.