Critchlow v. Critchlow

• Decision Date: 28 June 1977
• Docket Number: No. 77-492,77-492
• Citation: Critchlow v. Critchlow, 347 So.2d 453 (Fla. App. 1977)
• Parties: John Wilbur CRITCHLOW, Appellant, v. Cynthia Bruce CRITCHLOW, Appellee.
• Court: Florida District Court of Appeals

Page 453

347 So.2d 453

John Wilbur CRITCHLOW, Appellant, v.Cynthia Bruce CRITCHLOW, Appellee.

No. 77-492.

District Court of Appeal of Florida, Third District.

June 28, 1977.

Marks, Keith, Mack, Lewis & Allison and John R. Allison III, Miami, for appellant.

Paul G. Block, Miami, for appellee.

Before BARKDULL, HAVERFIELD and NATHAN, JJ.

HAVERFIELD, Judge.

AppellantJohn Critchlow, seeks review of a protective order preventing him from deposing his wife's treating physicians in this child custody contest arising out of a dissolution of marriage action.

Cynthia Critchlow, appellee, filed a petition for dissolution of marriage and prayed that custody of the parties' 31/2 year old child, Kelli, be awarded to her.John filed a counterpetition; but did not challenge Cynthia's prayer for custody of Kelli.Cynthia subsequently was committed to a hospital for mental treatment and with leave of court, John filed an amended counterpetition seeking custody of Kelli due to Cynthia's mental health.Thereafter, the parties agreed to the appointment of Dr. Richard Greenbaum, psychiatrist, to render a professional opinion as to which party is best suited to have care and custody of Kelli.After individually interviewing John, Cynthia and Kelli, Dr. Greenbaum submitted his report recommending that Cynthia be awarded custody.Pursuant to stipulation of respective counsel, each party obtained copies of Cynthia's hospital records.Upon motion, the trial court entered an order authorizing John to take the depositions of Drs. Bond, O'Lone and Greenbaum, Cynthia's treating physicians.Cynthia did not object to this order and her counsel attended the deposition of Dr. Greenbaum by John's counsel.Upon stipulation of respective counsel, the judge entered an agreed order authorizing John to depose Dr. Koenig, Cynthia's childhood physician.Subsequently, an order was entered granting John temporary custody of Kelli and enjoining Cynthia from attempting to remove Kelli from John's care.Cynthia then filed (1) a motion for protective order requesting that the depositions of Drs. Bond, O'Lone and Koenig not be taken, and (2) a motion to set aside the temporary custody order.After a hearing, the trial court entered an order denying the motion to set aside the temporary custody order; but granted the motion for a protective order.John appeals the entry of the protective order.We reverse.

Cynthia made no objection to the order authorizing the depositions of Drs. Bond, O'Lone and Greenbaum and even stipulated to the order authorizing the deposition of Dr. Koenig.Thus, we find that Cynthia waived any privilege with respect to the testimony of her treating physicians.Cf.Savino v. Luciano, 92 So.2d 817(Fla.1957);Tibado v. Brees, 212 So.2d 61(Fla.2d DCA1968).

In addition, this case falls within the exception to the privileged communication between a psychiatrist and his (or her) patient as set out in Section 90.242(3)(b), Florida Statutes(1975):

"90.242 Psychiatrists as witnesses; nondisclosure of communications with patient

"(3) There shall be no privilege for any relevant communications under this section:

"(b) In a...