Elkman v. Elkman ( 1961 )

Dissenting Opinion by

Woodside, J.:

The majority opinion in this case gives a new and almost ludicrous meaning to “fundamental error”. The majority holds that the trial court, in a hearing on a petition to increase a support order, committed fundamental error by refusing permission to the wife to examine the books of corporations owned by her husband.

The Pennsylvania Rules of Civil Procedure provide that the Court may — not that the court must — order a party to permit the inspection of books in his possession, custody or control, providing the court considers, not only that they are relevant, but also that they “will substantially aid in the trial”. (Emphasis supplied.! Even if the inspection of the records would substantially aid in the trial, the trial court may refuse to permit the inspection if the inspection “causes unreasonable annoyance, embarrassment, expense or oppression.”

This appeal is not from a hearing on a petition for an original support order, but from a hearing on a petition to increase an order. The issue is more limited here than in a hearing on an original order. Income tax returns of the defendant and his corporations were submitted in evidence, accountants for both sides were examined and cross-examined, and many hundreds of pages of testimony were taken.

The trial judge is in a unique position to know what additional evidence would “.substantially aid” him in arriving at his decision on whether a support order should be increased. He is also in a unique position to determine whether the audit of the books of a corporation would cause the defendant “unreasonable annoyance, embarrassment, expense or oppression”. These are matters within his discretion.

There is more than sufficient evidence in this case to support a conclusion that such an audit would cause unreasonable annoyance, embarrassment, expense and oppression. The trial court alone knows whether any evidence thus obtained would substantially aid him in determining what a fair order should be. How our Court can possibly arrive at a conclusion that it, rather than the trial court, should make this determination is beyond my conception. I, therefore, strongly and emphatically dissent.

Watkins, J., joins in this dissenting opinion.