By: Curtis Wiberg
During a divorce proceeding, or in a post-decree modification proceeding, issues related to a spouse’s income or assets are often disputed, especially when one spouse suspects the other spouse is hiding income or assets from them.
Typically, bank records and income information is disclosed through the mandatory financial disclosure process of Colorado Rule of Civil Procedure 16.2, or (if you have need to review many months worth of financial documents) through the process of discovery as outlined in Colorado Rules of Civil Procedure 33 and 34. These rules of civil procedure, however, operate on the premise that the spouse will abide by their duty to disclose requested or required information. Some spouses, whether through dishonesty, indifference, or neglect, do not abide by their duty to disclose (or fully disclose) their information as required under these rules.
The spouse who does not disclose information as required is vulnerable to significant sanctions, and these sanctions often are sufficient to protect the spouse seeking this information. However, if production of documents remains necessary, a party’s right to subpoena documents exists under a different, C.R.C.P. Rule 45.
Rule 45 allows one spouse to request records from outside, non-party persons or entities, such as banks or employers. There are limits to subpoena power, however, and a party cannot use subpoenas as a substitute for the disclosure and discovery rules outlined above. Further, the subpoena rules are very strict to prevent the subpoenaing spouse from abusing the power of subpoena.
A Colorado Supreme Court case, In re: Marriage of Wiggins, is a case in which the Colorado Supreme Court strongly protected a party from the misuse of subpoena power by her ex-husband and his attorney. Wiggins was a post-decree child support modification case. Shortly before trial, ex-husband and his attorney subpoenaed the employee file of the ex-wife at her prior place of employment in order to obtain income information. When the subpoena was served on the employer, the ex-wife had no notice of the subpoena being issued or of it being served on the former employer. Moreover, the former employer called the ex-husband’s attorney, indicated there might be a problem with appearing in court with the ex-wife’s employment file as directed to do in the subpoena, whereupon the attorney suggested that the former employer just scan and e-mail the file instead. The former employer complied with the attorney’s direction, and sent the entire employee file to ex-husband’s attorney.
Only after the ex-wife’s employee file was produced did ex-husband’s attorney notify ex-wife’s attorney. Ex-wife’s attorney immediately raised objections and requested sanctions against ex-husband’s attorney. When the trial court denied ex-wife’s objections, she used a rare procedure to request a pre-trial appeal, and as an indication of how seriously the Colorado Supreme Court considered the issue of abusing subpoena power, the Supreme Court accepted the appeal.
Among the concerns the Supreme Court had with the use of the subpoena in this case is that ex-wife was never provided an opportunity to object to the subpoena before the records were produced, the employee file contained confidential information, including bank account and routing numbers and performance evaluations all provided to ex-husband unredacted, and it was obtained without ex-husband first seeking relevant information via the use of the discovery rules outlined above. Ultimately, the Supreme Court found that the subpoena process had been abused, that ex-husband and his attorney had to destroy all existing copies of the records obtained, and directed the trial court to consider whether sanctions against ex-husband’s attorney was appropriate.
Since the Supreme Court decided Wiggins, C.R.C.P. Rule 45 has been revised, but many of the protections from abuse that the Wiggins court highlighted have been maintained and clarified. For one, Rule 45 requires that once a subpoena for records has been served on the non-party, that the other party be immediately notified of the issuance and service of the subpoena. Furthermore, the non-party served the subpoena is directed to not produce the records sooner than 14 days from service of the subpoena to give the other party an opportunity to bring objections to the court. If there is an objection to the subpoena, the issuing party has to demonstrate good cause for why the subpoena had been issued rather than resort to the discovery rules, especially if the subpoena requests confidential or sensitive information.
If you are involved in a case where the production of documents is contested, and the use of subpoenas has occurred or is considered, contacting a family law attorney to understand your rights, options, and duties is advised.