DocketNumber： 5184, 5185
Citation Numbers： 616 P.2d 707
Judges： McClintock, Raper, McClin-tock, Thomas, Rose, Rooney
Filed Date： 7/29/1980
Status： Precedential
Modified Date： 10/19/2024
dissenting.
Because I do not believe that this court can say as a matter of law, that the trial judge did not abuse his discretion by failing to impose sanctions, and because I do not believe that the trial judge was justified in requiring that a trust fund be set up for Mrs. Paul in lieu of awarding her a lump-sum payment representing the property settlement, I must dissent.
Pretrial Discovery
To predicate appellate review upon the theory that “the reviewing court’s task is simply one of deciding whether or not prejudice had been suffered by reason of the trial judge’s alleged abuse of discretion,” 616 P.2d at 715, is to ignore the purpose of the rules of discovery. The threshold question must be whether the trial judge abused his discretion in failing to impose sanctions. If this question is answered affirmatively then this court must make a determination as to whether this abuse of discretion was prejudicial.
■ In determining that the trial judge did not abuse his discretion in the case at bar, the majority has made the following findings:
“. the trial judge dealt with the counsel; he was in a position to assess the husband’s claim of abusive discovery; and he was in a position to better estimate whether the husband’s improper conduct was prejudicing the wife’s efforts at trial.” 616 P.2d at 715.
These findings represent a half-hearted attempt to demonstrate that this court has
Pretrial discovery provided for by Rules 26 to 37, W.R.C.P. is one of the most useful tools a litigant has. As Mr. Justice Jackson has aptly stated in a concurring opinion in Hickman v. Taylor, 329 U.S. 495, 515, 67 S.Ct. 385, 395, 91 L.Ed. 451 (1946), “ ‘[discovery’ is one of the working tools of the legal profession.” The rules of discovery have changed the atmosphere of a trial from that of a game where each side is attempting to surprise the other, to a fair contest where each party is required to present fairly all of the pertinent facts in support of his case. As stated in United States v. Proctor & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958), discovery “make[s] a trial less a game of blindman’s bluff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent.” And, as pointed out in Greyhound Corporation v. Superior Court, Merced County, 56 Cal.2d 355, 15 Cal.Rptr. 90, 99, 364 P.2d 266, 275 (1961), quoting Professor David W. Lou-isell, “ ‘* * * a law suit should be an intensive search for the truth, not a game to be determined in outcome by considerations of tactics and surprise. * *
The Wyoming rules of discovery are modeled after the federal rules of discovery and both were adopted in order to accomplish the following results: (1) to expedite both preparation for the trial and the trial itself by a simplifying and narrowing of the issues; (2) to provide the litigants a means to ascertain the truth and to aid in preventing perjury; (3) to aid in ascertaining the meritorious claims and defenses; (4) to inform the parties in advance of the trial of the value of their claims and defenses, thus encouraging settlement before trial; and (5) to minimize surprise at trial. Greyhound, supra, 15 Cal.Rptr. at 99, 364 P.2d at 275; Hickman, supra, 329 U.S. at 495, 67 S.Ct. at 385.
In order to accomplish these results the rules of discovery must be liberally construed in such a way as to favor disclosure of facts by both sides. While I do not question the majority’s conclusion that the trial court has discretion in granting or denying discovery requests and in imposing sanctions for failure to comply with discovery requests, this argument cannot be used to defeat the purpose for which the discovery rules were enacted. Greyhound, supra, 56 Cal.2d 355, 15 Cal.Rptr. at 101, 364 P.2d at 277. As stated by the California Supreme Court,
“Undoubtedly the discovery statutes vest a wide discretion on the trial court in granting or denying discovery. The appellate courts in passing on orders granting or denying discovery should not use the trial court’s discretion argument to defeat the liberal policies of the statute.” 15 Cal.Rptr. at 101, 364 P.2d at 277.
The California discovery statutes, like our own discovery rules, are substantially adopted from the federal rules of discovery; however, they were not copies verbatim from the federal rules.
The California Supreme Court has set forth general rules that should be followed in determining whether a trial court has properly exercised its discretion and I find the following language most persuasive:
“In the 20 years since adoption of the act Greyhound has been considered by bench and bar as a prime authority in the interpretation of the act and the principles and policies on discovery matters. In considering the trial court’s function we noted in relevant part: ‘It is apparent, however, that each exercise of discretion will occur under a different set of facts, and that each case must, of necessity, be decided in light of those particular facts. But it is possible to lay down certain*718 general rules based upon the nature and purpose of the discovery acts which can be used in determining the proper exercise of discretion in all discovery cases. To constitute a proper exercise of discretion, the factual determination of the trial court should clearly and unequivocally be based upon the following legal concepts: [¶] 1. The legislative purposes [to give greater assistance to the parties in ascertaining the truth and checking and preventing perjury; provide an effective means of detecting and exposing false, fraudulent and sham claims and defenses; make available in a simple, convenient and inexpensive way, facts which otherwise could not be proved except with great difficulty; expedite litigation; simplify and narrow the issues; and expedite and facilitate both preparation and trial] are not to be subverted under the guise of the exercise of discretion; [¶] 2. Those purposes are to be given effect rather than thwarted, to the end that discovery is encouraged ; . . . ’ (Pp. 382-383, 15 Cal.Rptr. p. 103, 364 P.2d p. 279, italics added.)” Britt v. Superior Court of San Diego County, 20 Cal.3d 844, 143 Cal.Rptr. 695, 710 [574 P.2d 766, 781] (1978) (Bird, C. J., Mosk and Newman, JJ., concurring opinion), quoting from Greyhound, supra.
In the case at bar the record indicates that the trial judge failed to give consideration to these factors when he denied Mrs. Paul’s motion for sanctions. Mr. Paul deliberately and intentionally disregarded his wife’s attempts to obtain discovery. In December of 1978 Mrs. Paul served her husband with 30 interrogatories requesting information concerning his financial status. After Mr. Paul failed to comply with the discovery request Mrs. Paul filed a motion to compel answers to the interrogatories. The trial court ordered that the husband answer the interrogatories by February 20, 1979, or judgment would be rendered for Mrs. Paul. Instead of complying with the court’s order Mr. Paul’s attorney contacted Mrs. Paul’s attorney on February 15, 1979 and indicated that Mr. Paul would make himself available to answer the interrogatories orally and would at that time make available the documents requested in the interrogatories. Mrs. Paul’s attorney reluctantly agreed to attend the session but stated in a letter to Mr. Paul’s attorney that
“[o]f course, I still feel Mr. Paul should have answered the interrogatories in writing at some point during these past two months. If he had answered in writing with his records in front of him, I believe his answers would have been more accurate and complete than I expect his oral answers will be. In any event, even though I am not signing your stipulation, I will attend the session
On February 21, 1979 Mr. Paul’s attorney mailed a Notice of Availability of Documents and Intent to Produce Sworn Statements in Answer to Interrogatories to Mrs. Paul’s attorney. The notice indicated that Mr. Paul would appear to orally answer the interrogatories and that he would at that time make available documents containing information requested in plaintiff’s interrogatories. The session was held at Mr. Paul’s attorney’s office and when Mrs. Paul’s counsel arrived for the oral questioning he was informed Mr. Paul’s attorney had not arranged to have a court reporter present to record Mr. Paul’s answers. After some discussion Mr. Paul’s attorney contacted a court reporter and the questioning was transcribed. At the conclusion of the session Mr. Paul’s attorney informed Mrs. Paul’s attorney that Mr. Paul would not supply a transcript to either the court or to Mrs. Paul. Mrs. Paul was forced to pay for a transcript of the proceedings even though under the rules of discovery the written answers to the interrogatories should have been supplied to her at no expense.
Mr. Paul did appear to orally answer the interrogatories, but he did little more than make an appearance. Not only did he fail to bring the requested financial documents, but his response to many of the questions propounded by his wife’s attorney were argumentative and incomplete. On a number of occasions he stated that the question had previously been answered in Arkansas or
In addition to refusing to comply with the request for answers to interrogatories, Mr. Paul also failed to comply with a subpoena duces tecum personally served upon him several days before trial. The subpoena duces tecum requested that he bring with him to trial certain documents concerning his various financial activities.
The foregoing illustrates the flagrant abuse of the discovery process by Mr. Paul and his attorney. This conduct frustrated Mrs. Paul’s attempts at pretrial discovery, forcing her to go to trial substantially unprepared to present her case. The importance of discovery in this case is emphasized by the majority when they accept as fact that this man, considered by the district judge to be a man of exceptional financial ability, was reduced in worth by almost a million and a half dollars in the 16 years of the marriage. In view of the generally rising values during that period of time, I am skeptical of this conclusion and would subject it to the closest scrutiny. Because of the district court’s failure to enforce discovery that court and this can only speculate as to Paul’s actual worth. That the majority are only speculating is highlighted by the exercise in figures set forth in the opinion. By multiplying the $20,000 per year that Mrs. Paul is to receive by the number of years during which she may receive it, they arrive at a total of $680,000. Considering other payments or property which she will receive, and other payments that Paul is required to make, the majority arrive at this interesting tabulation:
Total paid by husband $750,000
Total received by wife $795,000
At first blush these figures, considered against the court-accepted net worth of Paul of $1,400,000, give the impression that the district court has been generous with Mrs. Paul and stringent with her husband. The majority conclude that “[n]ot only do we not find that the judge abused his discretion, but we find the distribution fair, just and judiciously contrived.” 616 P.2d at 714. In actuality, however, Paul has paid out only $205,000 for the annuity, the amount necessary to set up the trust fund, or some $475,000 less than the majority would indicate. I think this is the first instance I have seen where the husband is given credit for all the money that his present payment will produce over a period of years.
The litigation appears to have been protracted, involving several states, and a number of depositions were taken. Whether this lengthy battle was due to the fault of the plaintiff or defendant does not seem to me to be important; the only thing that we must determine is whether Mrs. Paul has had a fair trial in the courts of Wyoming. I would say that it is a principle deeply engrained in our jurisprudence that the wife is entitled to approach the bar of justice as equally informed of her husband’s
A remand for a new trial with additional time for additional discovery was entered in Biehler v. White Metal Rolling & Stamping Corporation, 30 Ill.App.3d 435, 333 N.E.2d 716 (1975). This was a products liability case involving a ladder claimed to be defective. The appellate court found that defendant's failure to comply with discovery orders prevented plaintiff from being able to show that defendants knew or should have known of the defective condition.
I also believe that the situation is much like that in Boyce v. Boyce, Utah, 609 P.2d 928 (1980). Judgment had been entered making a disposition of property that Mrs. Boyce, moving for relief under Rule 60(b), U.R.C.P. (essentially the same as Rule 60(b), W.R.C.P.), claimed was not based on a proper showing of her husband’s assets. The district court found that Mrs. Boyce, before entry of the decree, had reason to believe that valuations were not correct and denied relief. The supreme court reversed, saying (609 P.2d at 930-931):
“. . . [Defendant's record of noncompliance with discovery procedure and other tactics designed to prevent full disclosure, if true, is a perversion of the judicial process and will, not be overlooked solely on the ground that the plaintiff is perhaps guilty of some degree of fault in not being as diligent as she might have been. A trial court, in the highly equitable matter of making a fair division of property in the context of a dispute that is often highly acrimonious and bitter, must take care that evasive stratagems not stand in the way of a just resolution. The determination of what assets are subject to the divorce proceeding may not be based on gamesmanship calculated to obfuscate the facts; the judicial system is not to be manipulated in divorce proceedings by one who actively and aggressively misleads the court and the opposing party, simply because the opposing party was in a small measure delinquent in not discovering the fraud prior to entry of a final decree.”
Although, as I shall later set forth, I am not satisfied with the general arrangement by which the district court has disposed of the property of the parties, my real concern as an appellate justice is that by our decision today we cripple what to me was one of the most important and valuable concepts of the new federal rules, adopted by us in 1957. Through inadequate discovery the court has not been furnished with a proper base for its determination. I can summarize my position no better than did the Utah court when it said in Boyce, 609 P.2d at 931:
“In the present case, though plaintiff had a hearing, she was denied a judgment based on accurate information and full disclosure relative to the merits of her position.”
If for no other reason, I would have remanded the cause for a new trial with additional time for additional discovery with imposition of such legal sanctions as are proper to that end.
Property Settlement — Trust Fund
I also disagree with the majority’s conclusion that the distribution made by the district court was “fair, just and judiciously contrived” and believe that the trial judge abused his discretion when he set up a trust fund for Mrs. Paul in lieu of awarding her a lump-sum payment representing the property division. Even though the majority failed to address the question of the propriety of the trust fund, I believe this to be the controlling question.
Mrs. Paul contends, among other things, that the trial judge erred in not requiring Mr. Paul “to immediately pay to Appellant a sum of money equivalent to her interest in the Pittsburgh residence, between $175,-000 and $200,000.” The Pittsburgh residence is jointly owned by the parties and
The trial judge’s order granting the divorce provides in pertinent part:
“6. That as an equitable division of the parties’ property, the Defendant shall form and maintain a trust fund with a reputable banking institution which shall pay to the Plaintiff $20,000 in interest annually, payable on June 1 of each year, for 34.2 years. Said trust fund is to begin payment to Plaintiff on June 1, 1980. At the conclusion of the 34.2 years, or upon the death of Plaintiff, whichever occurs first, the principal of said trust fund shall be transferred and set over to the parties’ child, Samantha Paul.
“7. That as an equitable division of the parties’ property, Defendant shall pay to Plaintiff the sum of $2,000 per month for one year. Said payments to be received by Plaintiff no later than the 1st day of each month with the first payment due on June 1,1979, and the last payment due on May 1, 1980.
“8. That plaintiff be, and she is hereby, ordered to convey to Defendant by good and sufficient quit claim deed, all of her right, title and interest in the real property located at 116 Woodland Road, Pittsburgh, Pennsylvania, and to execute any and all other instruments necessary to effect such conveyance so that Defendant will own fee simple title to said real property.”
The trial judge and this court have characterized this trust fund as a property settlement. If this is actually a property settlement such a disposition is not just and equitable as required by § 20-2-114, W.S. 1977. My understanding of a property settlement is that the property of the parties is to be divided in an equitable manner with each party being awarded a portion of that property. Each party is then free to make such disposition of their shares as they desire.
Mrs. Paul contends that the trust fund can be funded for $205,000. Whether or not this is correct, I do not know; however, Mr. Paul has not contested this estimate. Assuming that the trust fund can be funded for $205,000, the trial judge has in essence divested Mrs. Paul of her interest in the family home replacing it with a trust that terminates upon her death.
In reviewing this court’s decisions concerning property settlements, alimony awards, and child support, I have failed to find any authority upholding such a disposition. While the cases are not numerous, other courts have considered the question of whether a trial judge has the power to require that a trust fund be set up in a divorce proceedings. Of the courts that have discussed this question, some have held that such an order cannot be upheld, while others have concluded that in special circumstances, either the equitable powers of the court or the expressed or implied statutory language allow such a disposition. Annot., 3 A.L.R.3d 1170, § 2(a), at p. 1172 (1965).
In Harden v. Harden, 182 Okl. 364, 77 P.2d 721, 725 (1938), the court, finding that the trial judge did not have the power to create a trust fund for alimony payments stated:
“Finally, the plaintiff contends that the trial court erred in attempting to create a trust of the alimony awarded so that the income therefrom would be paid to plaintiff and the trust estate to descend to her heirs upon her death. We find no authority for such disposition of the alimony award by the trial court. The plaintiff is entitled to this alimony, and, as we have found, the sum awarded is reasonable. We must hold, however, that the trial court erred in attempting to create a special trust of the alimony awarded.”
On the other hand, in Farley v. Farley, 227 Cal.App.2d 1, 38 Cal.Rptr. 357, cert. denied 379 U.S. 945, 85 S.Ct. 438, 13 L.Ed.2d 543 (1964), involving an action to establish a Utah divorce decree as a California judgment that was consolidated with a separate action by plaintiff’s ex-husband who was seeking to have the title of the California land that had been placed in trust by the Utah court quieted, the California court
The pertinent Utah statute gave the divorce court the power to “make such orders in relation to the children, property and parties, and the maintenance of the parties and children, as may be equitable.” Farley, supra, 38 Cal.Rptr. at 361. The California court held that the decree was valid in light of this statute to the extent that the trust fund was set up to meet the financial needs of the minor children. However, the court went on to hold that
“. . The cited Utah cases convince us that the decree is valid to the extent that it serves the above purposes during the children’s minority. The decree goes farther, however. It effectively divests Mr. Farley of all interest in the land for the purpose of vesting it, or its remaining proceeds, in the children when they reach adulthood. The Utah court has attempted an inter vivos disposition of the husband’s estate for the benefit of his adult children. No Utah case has been brought to our attention which lends direct or inferential support to such a disposition upon divorce; nor, in our view, may the broad language of the Utah statute be stretched to such an extreme.” Farley, supra, 38 Cal.Rptr. at 362.
In In re Marriage of Winter, Iowa, 223 N.W.2d 165 (1974), the appellate court directed that an alimony award be placed in a trust fund in view of the exceptional circumstances presented by the case, including the wife’s uncertain personal and economic situation. The court stated:
“* * * In the exceptional circumstances of this case, in view of Joan’s uncertain economic and personal situation, and in consideration of the purposes of alimony and our desire to see those purposes achieved, we hold that. award should be placed in trust . . .” 223 N.W.2d at 170.
It is important to note that in this case the appellate court not only found that exceptional circumstances warranted the creation of a trust fund, but when the trust is terminated the wife is entitled to the corpus.
Section 20-2-114, W.S.1977, supra, empowers the trial court to
“. . make such disposition of the property of the parties as appears just and equitable, having regard for the respective merits of the parties and the condition in which they will be left by the divorce, the party through whom the property was acquired and the burdens imposed upon the property for the benefit of either party and children.”
While the statute does not specifically provide that the trial court has the power to order that a trust fund be established, the broad language of this statute probably allows for such a disposition. Assuming that the statutory language allows the trial court to order that a trust fund be created to secure a property settlement, the question whether this power should have been exercised in the case at bar still remains unanswered. The cases that have allowed such a disposition have done so in most cases only if the particular circumstances of the case warrant the establishment of a trust fund. As pointed out in Annot., 3 A.L.R.3d 1170, § 7, at p. 1180 (1965), “[i]t is apparent, from the paucity of cases in which the issue has been presented, that the measure is one not lightly resorted to . . ”
In the case at bar there has been no showing that special circumstances require that such a trust be established. To begin with, the trust was not set up to insure the support and education of Mr. and Mrs. Paul’s daughter. The record indicates that Mr. Paul is to pay $300 a month for child support and he is to also pay for the girl’s college education. There is no showing that Mr. Paul is likely to fail to meet these obligations. Furthermore, there is no showing that Mrs. Paul is incapable of han
•Not only do I object to the trust fund, I also object to the transfer of the corpus to the daughter when the trust is terminated. As was said in Feldmann v. Feldmann, 166 Kan. 699, 204 P.2d 742, 748 (1949), “the general rule is that in granting a divorce a court has no authority under the statute to decree that a part of the property of the husband shall be the sole property of his children.” Likewise, in Giambrocco v. Giambrocco, 161 Colo. 510, 423 P.2d 328, 331 (1967), the trial court’s order requiring the wife to convey her half-interest in residential property to a trust for the benefit of the children was found to be invalid by the Colorado Supreme Court. In so holding, the court stated:
“Accordingly, we hold that the trial court’s order with reference to the creation of a trust, requiring the plaintiff to convey her half-interest in the residential property belonging to both the parties for the benefit of their children, is beyond the jurisdiction of the trial court, and clearly invalid.” 423 P.2d at 331.
Even if this court determines that § 20-2-114, W.S.1977 allows the trial court to order that certain property be awarded to the children in a divorce action, I believe a correct interpretation of the statutes requires that such action may be taken only under special circumstances. The pertinent part of § 20-2-114 provides that in arriving at a just and equitable property settlement the trial court must “consider the burdens imposed upon the property for the benefit of either party and children.” This language is ambiguous and, therefore, we must consider the intent and purpose of the statute and then give effect to that intent. State ex rel. Albany County Weed and Pest District v. Board of County Commissioners of County of Albany, Wyo., 592 P.2d 1154, 1157 (1979).
In my opinion, the legislature included this language in the statute not for the purpose of giving the trial judge the power to direct a parent to give a child a share of his or her estate, but rather to insure that support and education of minor and incompetent children will be provided for after the divorce. As aptly stated by the Colorado Supreme Court in Menor v. Menor, 154 Colo. 475, 391 P.2d 473, 477 (1964):
“* * * The trial court was without authority to direct that James must give to each of his children a share in a future estate which he may or may not acquire. The obligation of the defendant is to provide reasonable support for his children according to their need, within the range of his ability. A father of children is under no obligation to settle any property upon his children, or to deed them an interest in any asset. On the contrary he may by will or deed or other voluntary act disinherit a child if he sees fit to do so
Accordingly, had I been writing for the majority, I would have held that the trust fund is invalid in two respects. First, there was no showing of exceptional circumstances warranting the creation of the trust fund for the payment of the property settlement and, also, the trial court did not have the authority to require that the corpus of the trust fund be given to the daughter upon the termination of the trust.
APPENDIX
Excerpt from Motion for Sanctions, filed April 13, 1979:
“a. Interrogatory 1 asks for the net and gross income Defendant received each year of his marriage to Plaintiff. Defendant received income from P.E.I. Corporation and Hesgon Corporation during his marriage. Defendant answered the question only for the year 1976 and only for income from P.E.I. during 1976. No answer was given for 1964 through 1975 or for 1977 and 1978 for P.E.I. and no answer was given for 1974 through 1978 concerning Hesgon. Defendant stated that the answers were given in a deposition taken on August 31, 1978, in Pittsburgh, Pennsylvania, (which Defend*724 ant has filed herein) but the answers are not contained therein. (See Exhibit ‘E’, page 17, line 8 through page 21, line 13).
“b. Interrogatory 1 requests income tax returns for 1963 through 1978. Defendant failed to produce said documents and had not contacted the Internal Revenue Service in an attempt to obtain copies. (See Exhibit ‘E’, page 21, line 14 through page 21, line 22).
“c. Interrogatory 2 requested the amount of or consideration for any mortgage. Defendant testified that he had a mortgage on a condominium in Brownsville, Texas, but refused to give the amount of or consideration for the mortgage. Defendant stated that the information was contained in his August 81, 1978, deposition taken in Pittsburgh. That deposition does not contain the answer. (See Exhibit ‘E’ page 32, line 13 through Page 32, line 24).
“d. Interrogatory 2 requested the original amount, rate of interest and unpaid balance of all mortgages of Defendant. Defendant refused to answer these questions as pertaining to the mortgage on the Brownsville, Texas property. Defendant stated that he had documentation that would supply these answers, but he did not bring it with him. (See Exhibit ‘E’ page 34, line 13 through page 35, line 23).
“e. Interrogatory 3 requested information concerning money owed to Defendant. Defendant stated that Plaintiff’s son owed him money for educational expenses. The Defendant failed to answer the amount owed, stating it was documented but he did not bring the documentation with him and had not looked at it prior to coming to the oral answers. (See Exhibit ‘E’ page 42, line 16 through page 43, line 14).
“f. Interrogatory 4 requested information concerning money owed to any entity in which Defendant has an interest. Defendant stated that this information was in his August 31, 1978, Pennsylvania deposition and in his Arkansas deposition of February 19,1979. (See Exhibit ‘E’ page 45, line 25 through page 46, line 17). Defendant failed to produce a copy of the Arkansas deposition. Plaintiff has reviewed both depositions and can not find the answer to this question therein.
“g. Interrogatory 5 requested, among other things, the original purchase price and value of any automobiles of Defendant and the person or firm from whom it was purchased. Defendant stated that the original value of his Lincoln Continental was testified to in his August 31, 1978 Pennsylvania deposition. Furthermore, Defendant stated that he could not recall the purchase price or the firm from whom he purchased the Lincoln. Defendant failed to provide documentation concerning any of these points. (See Exhibit ‘E’ page 49, lines 4 through 12).
“h. Interrogatory 5 also requested information concerning Defendant’s aircraft, including value at date of purchase, firm purchased from, original purchase price, and total amount of payments made. Defendant stated that the original value and purchase price were answered in his Pennsylvania deposition of August 31, 1978. Said deposition does not contain that information. Defendant failed to give the name of the firm from whom he had purchased his aircraft, even though he had documentation on the issue. Defendant also refused to testify to the total amount of payments made. (See Exhibit ‘E’ page 51, line 16 through page 53, line 4).
“i. Interrogatory 6 requests information concerning Defendant’s furniture or household goods. Defendant totally failed to answer this Interrogatory. Defendant stated that he had been to his home since the Interrogatories were served but failed and refused to even provide the Plaintiff with a list of furniture. Defendant also refused to give even an estimated value. (See Exhibit ‘E’ page 53, line 11 through page 58, line 24).
“j. Interrogatory 7 requests information concerning Defendant’s business enterprises during his marriage, including the annual gross profits during the years 1963 through 1978. Defendant stated that all answers had been given in his*725 August 31, 1978 Pennsylvania deposition, his February 19, 1979 Arkansas deposition, and Court hearings in Pennsylvania. (See Exhibit ‘E’ page 58, line 25 through page 62, line 18). The September ‘support’ hearing in Pennsylvania has never been transcribed (as described above) and, therefore, Plaintiff does not have that information. A review of the Pennsylvania and Arkansas depositions reveals that the Defendant has never testified concerning the annual gross profits of his business enterprises.
“k. Interrogatory 9 requests information concerning stocks that Defendant has purchased during his marriage. Defendant stated that he had previously answered this interrogatory in testimony in Pittsburgh, Pennsylvania and El Dora-do, Arkansas. (See Exhibit ‘E’ page 65, line 23 through page 66, line 13). Of course, the September, 1978 ‘support’ hearing was never and will never be transcribed. A review of Defendant’s August 31, 1978 Pennsylvania deposition and his February 19, 1979 Arkansas deposition reveals that Defendant has not testified concerning this information in either of those depositions.
“1. Interrogatory 14 requests information concerning any interest of Defendant in any parcel of real property, including the present value of the real estate. Defendant answered that all the information had been given in prior depositions and Court proceedings. (See Exhibit ‘E’ page 70, line 14 through page 71, line 24). Remembering that the September, 1978 ‘support’ hearing is not and will not be transcribed, a review of all previous oral testimony discloses that Defendant has never testified concerning the present value of the parties’ property located at 116 Woodland Road, Pittsburgh, Pennsylvania or the property located in Dubois, Wyoming.
“m. Interrogatory 16 requests information concerning sales of real property made by Defendant including the legal description. Defendant stated that he had previously testified concerning this information, except for the legal description. Documentation was available to Defendant, but he refused to acquire or produce the same. (See Exhibit ‘E’ page 72, line 20 through page 73, line 24).
“n. Interrogatory 17 asked whether any person, firm or other entity held any property in trust for the benefit of Defendant. The information requested included the name and address of trustees, complete description of the property, and the present value of the property. Defendant stated that this information had been given in his Pennsylvania and Arkansas depositions and in Pennsylvania Court proceedings. (See Exhibit ‘E’ page 74, line 7 through page 75, line 4). A review of all transcribed testimony reveals that Defendant has never testified concerning the names and addresses of trustees, description, and present value of property held in trust for Defendant in Mexico.
“o. Interrogatory 23 requests information concerning property, money or assets which Defendant claims are his separate property and not subject to division. Defendant stated that he previously testified concerning this issue. (See Exhibit ‘E’ page 78, line 24 through page 79, line 9). Upon review of all previous testimony of Defendant, Plaintiff can not find any answer to this Interrogatory.
“p. Interrogatory 24 refers to the sale of ‘separate property’ by Defendant. Defendant stated that he had previously testified to all of said Interrogatory. (See Exhibit ‘E’ page 79, line 10 through page 79, line 18). A review of all of Defendant’s previous transcribed testimony reveals that Defendant has never testified as to this issue.
“q. Interrogatory 28 requests information concerning any written or recorded statements obtained by Defendant. Defendant stated that there may be statements, other than what he has previously produced, but had not gone completely through his papers and could not produce the same. (See Exhibit ‘E’ page 83, line 19 through page 85, line 14).
“r. Interrogatory 29 requests information concerning any outstanding debts, liabilities or other obligation contracted by Defendant during his marriage (which*726 had not been discussed in previous interrogatories). Defendant testified that he was sure there were others, but he could not give a list of them because he had not gone through his papers before appearing at the oral answers. (See Exhibit ‘E’ page 85, line 16 through page 86, line 7).
“s. Interrogatory 30 requests information concerning funds received by Defendant during the parties’ separation. Defendant testified that he could not give a list. Furthermore, he had documentation from which to answer, but he had not looked at it prior to appearing for the oral answers and did not produce the documentation at the time of the answers. (See Exhibit ‘E’ page 86, line 8 through page 87, line 13).”