Bishop v. Goins

• Decision Date: 19 February 1992
• Docket Number: No. 40A04-9009-CV-455,40A04-9009-CV-455
• Citation: 586 N.E.2d 905
• Parties: Deborah (Goins) BISHOP, Appellant-Petitioner, v. Allan L. GOINS, Jr., Appellee-Respondent.
• Court: Indiana Appellate Court

Page 905

586 N.E.2d 905

Deborah (Goins) BISHOP, Appellant-Petitioner, v. Allan L. GOINS, Jr., Appellee-Respondent.

No. 40A04-9009-CV-455.

Court of Appeals of Indiana,

Fourth District.

Feb. 19, 1992.

Dan A. Patterson, Jones Patterson Boll & Tucker, Columbus, for appellant-petitioner.

Corinne Finnerty, McConnell & Finnerty, North Vernon, for appellee-respondent.

CHEZEM, Judge.

CASE SUMMARY

Appellant/petitioner, Deborah (Goins) Bishop, appeals from the denial of her petition to modify the custody order of her two children. We vacate and remand with instructions.

ISSUES

Deborah presents two issues for review, however, because we vacate and remand on the first issue, we need not address the second issue. We restate the first issue as follows:

Are the records concerning the marital counseling of the custodial parent and his spouse subject to discovery?

FACTS AND PROCEDURAL HISTORY

Deborah Bishop and Allan L. Goins, Jr., were divorced on October 26, 1983. At that time, custody of their two minor children, M.G. and A.G., was awarded to Deborah. On March 12, 1985, Deborah and Allan entered into an agreed modification granting custody of the children to Allan. On August 17, 1985, Allan married Diana Goins. On February 1, 1986, Deborah married Ed Bishop, which marriage was later dissolved on December 6, 1989.

On June 23, 1989, Deborah petitioned the trial court for a change of custody, alleging that there had been a change of circumstances so substantial and continuing as to make the existing custody order unreasonable. During pretrial discovery, Deborah deposed Sandy Zimmerman, who had been counseling M.G. and A.G. since 1987. During that deposition, it was discovered that Zimmerman had also conducted marital counseling between Allan and Diana. Thereafter, Deborah filed a motion for production of Zimmerman's records relating to the marital counseling. Diana refused disclosure, arguing that the records between her, a non-party, and Zimmerman were protected by the physician-patient privilege. The trial court conducted a hearing, and denied Deborah's motion to produce. Evidence was then heard on the merits of Deborah's custody claim. On June 15, 1990, the trial court concluded that Deborah had not shown a change in circumstances so substantial and continuing as to make the existing custody order unreasonable, and thus denied her petition.

DISCUSSION AND DECISION

Deborah contends that the marital counseling records of Allan and Diana were subject to discovery. ¹ A trial court exercises judicial discretion in ruling on discovery issues, and we will reverse on appeal only for an abuse of that discretion. THQ Venture v. SW, Inc. (1983), Ind.App., 444 N.E.2d 335. To determine whether the trial court abused its discretion, we look to the provisions of Ind. Trial Rule 26(B):

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) In general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action To obtain discovery here, the trial court must first determine whether the information sought is relevant ² to the issue being tried. Newton v. Yates (1976), 170 Ind.App. 486, 353 N.E.2d 485, trans. denied. If the information is not relevant, no further inquiry is necessary and the discovery is prohibited. However, if the information is relevant, the trial court must then determine whether the information is exempted from discovery by privilege or immunity. Id.

Deborah contends that the marital counseling records of Allan and Diana are relevant to the custody dispute. The record shows that Allan was unmarried when he received custody of M.G. and A.G.; his marriage to Diana occurred five months later. Since that time, Diana has been primarily responsible for the care of M.G. and A.G. in the Goins' home. As such, Diana's mental health was relevant to determine the best interests of the children. ³

Deborah also contends that the information sought was not the subject of privilege or immunity. The Supreme Court recently addressed the applicability of the physician-patient privilege to non-physician counselors. Matter of C.P. (1990), Ind., 563 N.E.2d 1275. Because the privilege is intended to inspire full and complete disclosure to further successful treatment by the physician, the Court found that a counselor who aids a physician is covered by the privilege. Conversely, a counselor who acts independent of a physician is not covered by the privilege. Id.

Thus, the question is whether Zimmerman was acting independent of a physician when providing the marital counseling to Allan and Diana. The record shows that Zimmerman has a Master's degree in Counseling and is a certified mental health counselor. While her office is located in and affiliated with the practice of five pediatricians, there is no evidence that these physicians participated with the marital counseling of Allan and Diana. Thus, the evidence indicates that Zimmerman acted alone and independent of any physicians. Accordingly, the trial court erred in determining that the marital counseling records were protected by the physician-patient privilege. The records are discoverable.

We vacate the order of the trial court and remand with instructions to: 1) enter an order allowing discovery of the marital counseling records; and 2) conduct a new hearing to determine whether there has been a change of circumstances so substantial and continuing as to make the existing custody order unreasonable.

STATON, J., concurring.

MILLER, J., dissenting with opinion.

MILLER, Judge, dissenting.

I dissent. Although I agree that Diana's mental health, if suspect, is a relevant consideration for the trial court as Diana is the children's primary care-giver, the information Deborah seeks is not relevant to the issue of Diana's mental health or to the issue of the best interest of the children.

The majority decision is based on Ind.Code 31-1-11.5-21(a)(6) which makes the "mental and physical health of all individuals involved" a relevant consideration. There is no question here about the mental or physical health of either party. The question is whether Allan and Diana remain fit parents for the ten and eight year-old girls. In this regard, the court was well informed. Elizabeth Siegmann--who testified at trial--conducted a custody evaluation for the court. In addition to interviewing the children, Allan and Diana, she evaluated both Allan's and Deborah's home and observed the children with each parent. Her detailed report was in evidence as well as her testimony. She was not able to make a custody choice.

In addition, both children were in counselling. Counselor Sandra Zimmerman testified about the problems the children were having. She testified that Diana had disciplined the children improperly, but stopped when Sandra told her it was improper. The substance of Zimmerman's testimony was that the girls were having problems from time to time, some of which may have been related to Allan's and Diana's marital problems, but the family was working through them. Also not mentioned...