Divorce Complaint Stricken and Testimony Precluded as Discovery Sanction

In Ferko v. Ferko, 2024 WL 3221108 (Apls. Ct. Md. June 28, 2024)(unreported), the intermediate appellate court affirmed a discovery sanction in a divorce action.

The action was pending on cross-complaints for limited and absolute divorce.  Mrs. Ferko alleged that Mr. Ferko’s discovery responses were inadequate on the issue of marital property.  Her motion for sanctions was granted and the trial court ordered full and complete discovery responses be provided by Mr. Ferko.

Ms. Ferko then filed two more motions to compel asserting that the discovery responses were deficient.  The court again ordered full and complete discovery responses, set a deadline, and “[t]he court also ordered that, if any documents requested by Wife were not produced by that date, then Husband would be prohibited from using those documents at trial.”  Id. at *1.

Ms. Ferko then filed a fourth motion to compel, alleging deficiencies, and the trial court again ordered “full and complete supplementation of all discovery responses” within fifteen days. Id. at *2.

However, there was more to come and the appellate court wrote:

On September 30, 2022, Wife filed a fifth motion to compel. On November 3, 2022, a hearing was held on Wife’s motion. At that hearing, Wife proffered that she had been trying to obtain a current valuation of the parties’ business but was unable to because Husband had continually refused to provide updated records. Wife further proffered that Husband had reportedly liquidated a large portion of the business’s assets and had not provided documentation showing those transactions. Wife noted that Husband’s refusal to provide discovery had been a continuing problem throughout the litigation. Wife requested that the court sanction Husband by precluding him from presenting evidence at trial.

The Appeals Court wrote: “Husband alleged that he had recently filed for bankruptcy. Husband argued that his bankruptcy filing should stay the proceedings, which would include the hearing on Wife’s motion for sanctions. When the court asked Husband how his bankruptcy filing would affect the court’s ability to enforce the rules of discovery, Husband gave a non-responsive answer about how the bankruptcy would impact the divorce proceedings and the court’s distribution of marital property.”

Mr. Ferko also asserted that he had produced over 3,000 documents and “at some point during discovery, he had told Wife to contact his attorney, who was in possession of the documents.”  Id. at *2.

When the trial court asked Mr. Ferko if he was aware of, and had complied with, the discovery order, he replied “that he was aware of the order. Husband again stated that his attorney had the documents and that Wife ‘would get them when the bankruptcy was filed.’ Husband then engaged in another monologue about how the divorce proceedings were affecting him personally and financially.”

While some documents had been provided, the trial court asked Mr. Ferko: “Why didn’t you give [Ms. Ferko’s attorney] everything he’s asked for?” Mr. Ferko responded: “Your Honor, the attorneys have all the original documents. I do not have them.”  The opinion continues:

When the court explained that Husband, not his attorney, was responsible for making sure the documents were given to Wife, Husband stated that he tried to get the documents from his attorney and that he was “doing [his] best.”

Prior to trial, the trial court granted Ms. Ferko’s request for sanctions, struck Mr. Ferko’s complaint, and precluded testimony and evidence related to the issues of marital property, alimony, and attorney’s fees.

At trial, Mr. Ferko “engaged in a lengthy diatribe regarding his frustrations with how the case had transpired and how those events had affected him, his finances, and his family.”  He told the court that he was “not going through five days of listening to this BS” and that he would “pray upon the [c]ourt to make the decisions that you feel are appropriate and get this done.” Husband concluded his statement by telling the court that “it’s in your hands” and “I hope that you’ll treat me fairly and I don’t want to go any portion of the trial, aside from his brief appearance at the start of the first day.”

On appeal, Mr. Ferko argued that the sanction was reversable error because he provided Ms. Ferko with all of the pertinent documents, she allegedly provided false information to the trial court, and the trial court was biased.

The Appeals Court stated that Maryland Rule 2-433 authorizes sanctions for failure to comply with a discovery order.  The standard of review is whether the trial court abused its discretion.  It wrote:

We have identified several factors that a court should consider before imposing sanctions: (1) whether the failure to disclose was technical or substantial; (2) the timing of the disclosure; (3) the reason for the failure to disclose; (4) any prejudice to the parties; (5) whether such prejudice may be cured by a continuance, and, if so, whether a continuance is desirable.

Applying that standard, the Court found no abuse of discretion:

First, the record supports the hearing court’s finding of a discovery violation, and Husband has presented no evidence or argument to suggest that the court’s finding was clearly erroneous. Although Husband claims, as he did below, that he complied with all discovery requests, the court was under no obligation to accept Husband’s self-serving assertion.

Further, Mr. Ferko “all but admitted” his failure.  Id. at *4.  And, repeated failures over a course of a year, with multiple motions and multiple court orders, combined with Mr. Ferko’s inconsistent obligations and other facts, supported the sanction.

The Court wrote that: “[R]ather than being contrite in explaining his failures, Husband was belligerent and seemingly more concerned with addressing issues that were irrelevant to the matter at hand.”

It added:

Here, Husband voluntarily left the courtroom at the start of trial. Prior to doing so, Husband stated quite clearly that he was imploring the trial court to “make the decisions that you feel are appropriate” and to “take this into your hands and make the divisions appropriately.” From that, a reasonable inference can be drawn that Husband was acquiescing in the court’s impending decisions regarding the evidence it would consider in issuing its decision. Regardless, because Husband was voluntarily absent from the evidentiary portion of the trial, he did not lodge any objections to Wife’s evidence, nor did he offer any evidence of his own. Consequently, Husband’s claims of error as to the court’s admission or exclusion of evidence are either waived or unpreserved.

“Court orders mean what they say, and compliance is not optional.”  See Word Processing Wars – E-Discovery LLC.  The “rules of procedure are not to be considered as mere guides or Heloise’s helpful hints to the practice of law, but rather precise rubrics that are to be read and followed, admonitions go unheeded by some practitioners.”   Colonial Carpets, Inc. v. Carpet Fair, Inc., 36 Md. App. 583, 584-85, 374 A.2d 419, 421 (1977) (emphasis added).