Culbertson v. Culbertson, W2012–01909–COA–R10–CV.

CourtCourt of Appeals of Tennessee
Citation455 S.W.3d 107
Decision Date30 April 2014
Docket NumberNo. W2012–01909–COA–R10–CV.,W2012–01909–COA–R10–CV.
PartiesHannah Ann CULBERTSON v. Randall Eric CULBERTSON.

455 S.W.3d 107

Randall Eric CULBERTSON.

No. W2012–01909–COA–R10–CV.

Court of Appeals of Tennessee.

Oct. 16, 2013 Session.
April 30, 2014.
Petition to Rehear Denied May 20, 2014.

Application for Permission to Appeal Denied by Supreme Court Oct. 17, 2014.

455 S.W.3d 113

Rachael E. Putnam and Austin T. Rainey, Memphis, Tennessee, for the Defendant/Appellant, Randall Eric Culbertson.

Amy J. Amundsen and Mary L. Wagner, Memphis, Tennessee, for the Plaintiff/Appellee, Hannah Ann Culbertson.


HOLLY M. KIRBY, J., delivered the opinion of the Court, in which ALAN E. HIGHERS, P.J., W. S., and DAVID R. FARMER, J., joined.


This is the second extraordinary interlocutory appeal in this divorce case and custody dispute. In the first appeal, this Court held that the father did not automatically waive the psychologist-client privilege as to his mental health records by seeking custody or by defending against the mother's claims that he was mentally unfit. While the first appeal was pending, the mother filed a motion asking the trial court to require the father to undergo a second mental health evaluation pursuant to Tenn. R. Civ. P. 35; the trial court granted the motion. The Rule 35 evaluating psychologist concluded that the father did not pose a danger to his children. Dissatisfied with this conclusion, the mother again asked the trial court to compel the father to produce all of the mental health records from his treating psychologists. After this Court rendered its decision in the first appeal, the trial court granted the mother's request and again ordered the father to produce all of the mental health records from his treating psychologists. The trial court reasoned that the father waived the psychologist-client privilege as to all of his mental health records by allowing the evaluating psychologists to speak to his treating psychologists, by providing mental health records to the evaluating psychologists, and by testifying that he had a history of depression and had undergone treatment for it. It also ordered the father to produce all of his mental health records because the mother needed them to prepare her case. The father filed a request for a second extraordinary appeal, which this Court granted. We vacate the trial court's order as inconsistent with this Court's holding in the first appeal; we hold that there was at most a limited waiver of the psychologist-client privilege, only as to the privileged mental health information that the father voluntarily disclosed to the two evaluating psychologists involved in this case. As for mental health records not subject to a limited waiver of the privilege, we hold that the standard for the trial court to compel disclosure of the records is not met in this case. We remand the case for factual findings on any privileged mental health records the father voluntarily disclosed and other proceedings consistent with this opinion.

Facts and Proceedings Below


In this appeal, our recitation of the facts is taken from the record and from this Court's opinion in the first extraordinary appeal, Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn.Ct.App.2012) (Culbertson I ). Defendant/Appellant Randall Eric Culbertson (“Father”) and Plaintiff/Appellee Hannah Ann Culbertson (“Mother”) married in 2004. Two children were born

455 S.W.3d 114

of the marriage. In July 2010, Father and Mother separated.

In November 2010, Mother filed a complaint for divorce in the Circuit Court of Shelby County, Tennessee. In her complaint, Mother alleged physical and emotional abuse by Father toward Mother and also toward the parties' young children. Based on the allegations that Father had anger issues and had physically abused Mother, the trial court granted Mother's ex parte request for an order of protection.1 The order of protection prohibited Father from being around either Mother or the parties' children.

Later that same month, Father filed an answer and counter-complaint for divorce. In his answer, Father denied the abuse allegations in Mother's complaint and demanded “strict legal proof thereof.” In his counter-complaint, Father asked the trial court to grant him sole decision-making authority as to the parties' children and to award him sole custody. Discovery ensued.

Consent Order

On November 22, 2010, the parties engaged in mediation. After the mediation, they entered into an agreement on certain pendente lite matters. On December 3, 2010, the trial court entered a consent order that included a temporary parenting schedule and temporary financial support. The consent order provided in part:

[Father] shall continue counseling with Dr. Deason pending his commencing therapy with Dr. Russell Crouse, Ph.D. on December 14, 2010 and Mother shall commence therapy with Dr. Lisa Clark, Ph.D. The parties' minor children, and parents, as needed, shall be evaluated by Dr. Jane Clement and upon completion of her evaluation, Dr. Clement shall serve as the children's counselor. The parties agree that Dr. Clement has permission to speak with the parties' respective counselors and the parties shall cooperate in making the children available for the evaluation and counseling. Dr. Clement shall assist the Court and the parties by making recommendations as to the best parenting arrangement for the parties and children.

(Emphasis added). Thus, the parties agreed on Dr. Clement as an evaluating psychologist for the purpose of making a parenting recommendation to the trial court. They also agreed that Dr. Clement, in her capacity as evaluating psychologist, had “permission to speak with the parties' respective counselors.” Under the consent order, Mother continued as primary residential parent and Father had supervised parenting time with the children several times a week. After entry of the consent order, Dr. Clement began the process of evaluating the parties.

Mother's Request for Father's Psychological Records

In February 2011, Mother embarked on her quest to obtain Father's psychological records, the subject of this appeal. Mother issued three notices to take the deposition duces tecum, with accompanying subpoenas duces tecum, of three of Father's psychologists, David Deason, PhD., Wyatt Nichols, PhD., and Russell Crouse, PhD. The notices and subpoenas directed each psychologist to produce “all notes and records for or pertaining to sessions with [Father], and any test results or data received from the initial therapy session to the present date.”

In response, Father filed a motion to quash. In his motion, Father argued that the information Mother sought was not

455 S.W.3d 115

discoverable because it was protected by the psychologist-client privilege, pursuant to Tennessee Code Annotated section 63–11–213.2 Father's motion to quash put at issue the question posed in this appeal.

On February 14, 2011, Dr. Clement filed her report and parenting evaluation with the trial court. The report said that Dr. Clement administered a variety of tests to the parties and conducted several interviews. It stated that Dr. Clement “had phone consultations with ... Wyatt Nichols and Russell Crouse” and “reviewed a letter from David Deason,” all Father's treating psychologists. The report detailed Dr. Clement's findings and ultimately recommended that Father “be afforded unsupervised and uninterrupted visitation with the children” on a graduated basis.

Not satisfied with Dr. Clement's report and recommendation, Mother promptly filed a “Motion for Release of [Father's] Psychological Records, to Compel [Father] to Execute HIPAA Authorization, and for Qualified Protective Order.” Mother also filed a response opposing Father's motion to quash. In these, Mother argued that Father waived any privilege as to the records of Drs. Nichols, Crouse, and Deason by permitting Dr. Clement to consult with them in conducting her evaluation. She claimed that, once the consent order was entered, Father “had an understanding that any information communicated to his psychologists would also be communicated to Dr. Jane Clement,” so he could not have expected that his communications with his treating psychologists would remain confidential. Mother also argued that Father had waived any privilege as to his mental health records; she contended that he placed his mental health “at issue” by denying Mother's abuse allegations and demanding “strict legal proof thereof,” and also by seeking primary custody and unsupervised parenting time. Mother contended that Father sought to use Dr. Clement's report as a “sword” to obtain custody and to defend against Mother's abuse allegations, and at the same time as a “shield” to protect his communications with his treating psychologists.

She cited Rule 703 of the Tennessee Rules of Evidence3 and argued that, if the trial court can access the data and information underlying Dr. Clement's opinions in order to assess the reliability and trustworthiness of the expert's opinion under Rule 703, then Mother should have the right to access the same underlying data and information.


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