Kimble v. Kimble, 32718
| Decision Date | 20 October 1977 |
| Docket Number | No. 32718,32718 |
| Citation | 240 Ga. 100,239 S.E.2d 676 |
| Parties | Beau Willard KIMBLE v. Betty Mae Mauldin KIMBLE. |
| Court | Georgia Supreme Court |
Carlisle & Newton, John T. Newton, Jr., Griffin, for appellant.
Beck, Goddard, Owen & Murray, John H. Goddard, Jr., Samuel A. Murray, Griffin, for appellee.
This is an appeal from a divorce case in which a divorce was granted with the plaintiff-wife receiving permanent custody of the couple's five children along with a monthly award for child support. Throughout the course of this litigation, there were numerous motions, applications for contempt, and orders filed. The only orders involved in this appeal by the defendant-husband are the denial of his discovery motion to allow the deposing of plaintiff's psychiatrist and the trial court's final order which denied his motion for a new trial and amended an illegal portion of the final judgment and decree, thereby making it legal.
1. Appellant first enumerates as error the trial court's denial of his motion to allow the deposing of plaintiff's psychiatrist. Code Ann. § 81A-126(b)(1) allows parties to "obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . ." (Emphasis added). Communications between a psychiatrist and his patient are protected as privileged communications under Code Ann. § 38-418(5).
Appellant relies on the cases of Massey v. State, 226 Ga. 703, 177 S.E.2d 79 (1970) and Plummer v. State, 229 Ga. 749, 194 S.E.2d 419 (1972) as authority for his proposition that the trial court erred. These cases are not applicable.
Both Massey and Plummer were criminal cases involving a situation where the defendant had plead not guilty by reason of insanity, and the psychiatrist involved was appointed by the court to determine the issue of sanity. The psychiatrist was not a witness for either the prosecution or the defense, but was instead a witness for the court. Under those circumstances, the requisite relationship of psychiatrist and patient did not exist to the extent that psychiatric treatment was given or contemplated. Therefore, the privilege established by Code Ann. § 38-418(5) could not be invoked.
In the present case the appellee went to the psychiatrist on her own volition for the purpose of gaining professional psychiatric assistance, thus creating the requisite confidential relationship of psychiatrist and patient. Under these circumstances the appellee could claim the privilege of Code Ann. § 38-418(5) and the trial court did not err in denying appellant's motion to depose appellee's psychiatrist.
2. Appellant's second enumeration of error contends that the trial court erred in amending an illegal portion of the final judgment and decree. In the original decree, appellant was ordered to pay the sum of $433.00 per month in child support with the payments being reduced by one-fifth as each child attained the age of eighteen years. The illegal portion of this decree was its final provision which ordered that the child support payment would include...
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