Flood v. Stumm

• Decision Date: 10 September 2008
• Docket Number: No. 4D08-1924.,4D08-1924.
• Citation: Flood v. Stumm, 989 So.2d 1240 (Fla. App. 2008)
• Parties: Patrick FLOOD, Appellant, v. Melissa K. STUMM, Appellee.
• Court: Florida District Court of Appeals

989 So.2d 1240

Patrick FLOOD, Appellant, v.Melissa K. STUMM, Appellee.

No. 4D08-1924.

District Court of Appeal of Florida, Fourth District.

September 10, 2008.

Ralph T. White of Schutz & White, LLP, West Palm Beach, for appellant.

Howard M. Rudolph and Heather M. Greenhill of Rudolph & Associates, LLP, West Palm Beach, for appellee.

PER CURIAM.

The father brings this petition for writ of certiorari to review an order overruling his objection to the production of medical records, as to which he claimed a psychotherapist-patient privilege, in his suit for a petition for modification of a paternity judgment.We grant the petition, concluding that the petitioner has shown irreparable injury not remediable upon appeal and a departure from the essential requirements of law.

The father seeks modification of primary residential responsibility, shared parental responsibility, and child support.In response to the father's claims, the mother outlined prior claims she had brought against the father, including allegations of domestic violence and abuse of the child.The mother then served a request to produce, which included a request for "all psychological records, notes and reports relating to the parties' minor child and/or the parties."(Emphasis added)

The father filed an objection to the mother's request to produce based on the psychotherapist-patient privilege recognized in section 90.503, Florida Statutes.The trial court found that the privilege did not protect the father's psychological records from disclosure and overruled the father's objections.

The psychotherapist-patient privilege protects confidential communications between the patient and the psychotherapist and the records of mental health treatment from disclosure to third parties.However, there is no privilege for

communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense....

§ 90.503(4)(c), Fla. Stat.(2007)(emphasis added).

Patently, merely seeking child custody does not make a party's mental condition an element of his or her claim or defense.E.g., Leonard v. Leonard,673 So.2d 97(Fla. 1st DCA1996)(quashing order allowing husband to depose wife's treating mental health professionals in dissolution of marriage proceeding where primary residential custody of children was in dispute, where no evidence was presented that might make wife's mental health an issue).

Nothing in the record before us indicates that either party has alleged facts that would place the father's mental health at issue.The mother maintains that the trial court acted correctly, basing her arguments, for the most part, on matters that apparently were never presented to the trial court or on events that occurred after the issuance of the order on review.

The mother also notes that the father requested a psychological evaluation of the mother, based on indications that she had coached the child to make false allegations of child abuse.The mother contends that a psychological evaluation of both parties is appropriate to determine the best interests of the child.

We have considered the mother's argument that the father's privilege was waived because of her prior allegations of child sexual abuse against him.Section 39.204, Florida Statutes, provides that privileged communication between a professional and a patient do "not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect."

She also argues that the child's need for protection outweighs the father's interest in the confidentiality.I.T. v. State, Dep't of Health & Rehabilitative Servs.,532 So.2d 1085, 1088(Fla. 3d DCA1988)(holding, in dependency proceeding, that it was not error for trial court to permit discovery of parents' psychiatric histories, though the privileged communication occurred before the birth of...