Bieluch v. Bieluch

• Decision Date: 02 August 1983
• Citation: 190 Conn. 813,462 A.2d 1060
• Court: Connecticut Supreme Court
• Parties: Jeanne F. BIELUCH v. William C. BIELUCH, Jr.

Page 1060

462 A.2d 1060

190 Conn. 813

Jeanne F. BIELUCH v. William C. BIELUCH, Jr.

Supreme Court of Connecticut.

Argued June 1, 1983.

Decided Aug. 2, 1983.

Ernest C. LaFollette, Monroe, for appellant (defendant).

C. Ian McLachlan, Westport, with whom, on brief, was Gaetano Ferro, New Haven, for appellee (plaintiff).

Before PETERS, HEALEY, PARSKEY, GRILLO and FRANCIS X. HENNESSY, JJ.

PETERS, Associate Justice.

The principal issue in this case is the extent to which the psychiatrist-patient privilege bars the receipt of psychiatric evidence in a dispute over child custody. The plaintiff, Jeanne F. Bieluch, brought an action against the defendant, William C. Bieluch, Jr., seeking dissolution of their marriage, custody of their three minor children, and various property and financial orders. Although the defendant nominally denied the breakdown of the marriage, he affirmatively contested only the issues of custody and of assignments of property. The trial court, after a full hearing, dissolved the parties' marriage, and awarded to the plaintiff much of the relief she had sought: custody of the children, unallocated alimony and support, and a transfer of the defendant's interest in the marital home. The court awarded the defendant visitation rights and ordered him to assume sole responsibility for certain listed family liabilities. The defendant has appealed.

Although the defendant has briefed four assignments of error, his most serious claim is that the trial court erred in receiving evidence, consisting of oral testimony and a written report, from Dr. Richard Robins, a psychiatrist. Robins testified that he had been engaged to do a custody study, first by the defendant, and thereafter by a court order entered upon the stipulation of the parties. The defendant himself paid Robins until June 16, 1981, the date of the court order, when the plaintiff assumed responsibility for the payment of the psychiatric fees. Robins met with the children, according to his testimony, for five sessions, and with the plaintiff for three sessions, once alone. As a result of a disagreement between Robins and the defendant, their contacts were limited to several telephone calls and informal encounters when the defendant brought the children to Robins' office. On the basis of this testimony, the trial court concluded that the defendant was entitled to claim the psychiatrist-patient privilege ¹ for communications between the defendant and Robins predating June 17, 1981. The court ruled, however, that Robins could testify about all of the defendant's conduct and about the defendant's communications after the cut-off date, and held admissible Robins' report once pre-June 17, 1981 communications were excised.

The defendant claims that, once the court recognized the psychiatrist-patient privilege with respect to any part of his relationship with Robins, it was error to permit Robins either to testify about, or to submit a report in any way derived from, contacts between the defendant and Robins. The defendant decries as unsupportable the trial court's distinction, for pre-June 17, 1981 events, between testimony describing communications, which was excluded, and testimony describing conduct, which was held admissible. Similarly, the defendant maintains that adverse comments in the admitted report could not be separated from the privileged communications which the court had ordered stricken. This is an argument that would have considerable appeal if its foundation were properly established. We need not, however, resolve the question because we find no basis for the defendant's assertion of any psychiatrist-patient privilege whatsoever.

We are hampered in our review of this question by an inadequate record. The defendant never sought to have the trial court articulate the basis upon which the court recognized his claim of privilege. The defendant, acting as his own counsel at the trial, represented to the court that he had employed Robins to do certain work, stating, "I hired him to talk with the children.... I was [I] believe, acting as an authorized representative on behalf of my children at that point in time. I was their parent and guardian." The defendant concededly paid Robins for his work prior to June 17. After June 17, in accordance with the court's order, upon the stipulation of the parties, the plaintiff assumed the responsibility for the remaining charges incurred "for an evaluation of the parties." The defendant had no private professional consultation with Robins at any time, the defendant having never met with Robins in the latter's office. The defendant relied on this record to assert the psychiatrist-patient privilege to exclude communications between himself and Robins.

It is our conclusion that the defendant has failed to supply an evidentiary foundation for his claim that his initial engagement of Robins constituted the establishment of a psychiatrist-patient relationship as that term is defined by our statute. Without such a relationship, the defendant had no privilege to exclude any part of Robins' testimony or report. Although the trial court, on this analysis, should not have excluded even the pre- June 17 communications, that ruling cannot make it reversible error to have admitted other evidence which was equally unprivileged. ²

The governing statute; General Statutes § 52-146d(6); defines the term "patient" as "a person who communicates with or is treated by a psychiatrist in diagnosis or treatment." (Emphasis added.) The present record contains no evidence of a psychiatrist-patient relationship in which Robins saw the defendant for the purpose of the defendant's diagnosis or treatment. Robins himself testified to the absence of a psychiatrist-patient relationship. The defendant, in asserting his privilege, never claimed that Robins had been asked to treat or diagnose the defendant, but rather claimed that Robins had been hired to evaluate the children. The transcript, therefore, does not bear out the defendant's assertion that Robins had been retained "for professional advice in relation to the matter of custody" if that assertion is intended to imply that a professional relationship for treatment or diagnosis of the defendant himself was thereby established. ³

If, in the alternative, we are to infer that the defendant was asserting the privilege, not on his own behalf but on behalf of his children, we encounter similar evidentiary obstacles. It is true that the statute extends the privilege to encompass "communications ... between a member of the patient's family and a psychiatrist." ⁴ Even this extended privilege must, however, relate to the objectives of diagnosis or treatment. The present record contains neither a claim nor any evidence that Robins was engaged to see the children for the purpose of diagnosis or treatment. Therefore this record does not require us to determine on what basis a claim of privilege should be resolved in a custody dispute where one parent asserts the privilege and the other, by offering the contested communications into evidence, intends to waive the privilege. The record does, however, serve to underscore how important it is that a trial court exercise its discretion to appoint independent counsel to represent the interests of minor children whenever the issue of childcustody is seriously contested. Yontef v. Yontef, 185 Conn. ---, ---, --- (43 CLJ 6, pp. 5, 8) 440 A.2d 899 (1981).

In his reply brief, the defendant does not dispute the lack of an evidentiary foundation relating to treatment or diagnosis, but argues instead that the statute makes confidential any communication of any kind between any person and a psychiatrist. The defendant urges us to construe the statute so that the phrase "in diagnosis or treatment" modifies only the words "is treated by" and not the words "communicates with." The defendant offers no basis for this construction, and we reject it. The purpose of the statutory privilege is to protect a therapeutic relationship. The statute provides a privilege for confidential communications so that a patient may safely disclose to his therapist personal information that is necessary for effective treatment or diagnosis. State v. White, 169 Conn. 223, 234-35, 363 A.2d 143, cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Communications that bear no relationship to the purpose for which the privilege was enacted do not obtain shelter under the statute and are admissible subject to the normal rules of evidence.

In concluding that the defendant has failed to establish the psychiatrist-patient relationship that is required before he may assert a privilege to exclude allegedly confidential communications, we do not preclude the possibility that, under other circumstances, communications elicited in a custody study may be privileged. A psychiatrist engaged in family therapy who is subsequently consulted for the purpose of making a recommendation in a custody dispute may well have received communications related to treatment or diagnosis. The appropriate fact-finding can await another day. For similar reasons, we need not decide whether, if the appropriate psychiatrist-patient relationship exists, the privilege is to be deemed waived by a parent seeking custody because...