Kinsella v. Kinsella
| Citation | 150 N.J. 276,696 A.2d 556 |
| Parties | John KINSELLA, Plaintiff-Respondent and Cross-Appellant, v. Mary KINSELLA, Defendant-Appellant and Cross-Respondent. |
| Decision Date | 10 July 1997 |
| Court | United States State Supreme Court (New Jersey) |
Cary B. Cheifetz, Livingston, and Michael C. Caulfield, Parsippany, argued the cause for appellant and cross-respondent (Skoloff & Wolfe, Livingston, and Kummer, Knox, Naughton & Hansbury, Parsippany, attorneys; Cheifetz, Beatrice E. Kandell, Livingston, and Phyllis S. Klein, Short Hills, on the briefs).
Christopher P. Gengaro, West Orange, and Toby Solomon, Livingston, argued the cause for respondent and cross-appellant (Lentz & Gengaro and Solomon, attorneys; Gengaro, Solomon and David W. Lentz, of counsel and on the brief).
The opinion of the Court was delivered by
This appeal presents the question whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.
Plaintiff John Kinsella and defendant Mary Kinsella married in May 1977 in New York City. The couple subsequently moved to Glen Ridge, New Jersey. Two children were born of the marriage: John, Jr. on April 6, 1982, and Anastasia on September 14, 1985.
In January 1992, plaintiff filed for divorce on the ground of his wife's extreme cruelty, dating from approximately 1986. Specifically, plaintiff alleged that defendant had been verbally abusive, that she would "fly into a rage for no reason," and that she had intentionally involved the children in the couple's arguments. Plaintiff also alleged that defendant had spent excessive time with a male friend and that she had devoted too much time to her interior design business. Further, plaintiff alleged that defendant had alienated family and friends by her "bizarre behavior." Plaintiff sought dissolution of the marriage, custody of the children, and equitable distribution of the marital property.
In March 1992, defendant filed an answer and counterclaim, denying extreme cruelty on her part and alleging extreme cruelty on the part of the plaintiff, commencing with the birth of the couple's son in 1982. Defendant alleged that plaintiff had undergone a change of character due to heavy use of alcohol and illegal drugs. She alleged a pattern of belittling and humiliating behavior by plaintiff towards her, both at home and in public. Defendant further alleged that plaintiff had verbally and physically abused her and the children on a number of occasions. One such episode allegedly had resulted in a miscarriage. On another occasion, allegedly resulting in defendant's hospitalization, she asserted that the couple's six-year-old son had intervened by hitting plaintiff with a chair, allowing defendant to flee and call the police. Defendant sought dissolution of the marriage, custody of the children, equitable distribution of the marital property, alimony and child support, as well as court costs and counsel fees. Defendant also sought compensatory and punitive damages for injuries set forth in the counterclaim.
The parties proceeded with discovery and with settlement negotiations. Defendant retained physical custody of the children. In the fall of 1992, the designated motion judge appointed a psychologist, Sharon Ryan Montgomery, Psy.D., to assist in determining whether plaintiff should have overnight visitation with the children. Dr. Montgomery's report was completed on July 7, 1993. She is expected to testify at trial.
Before rendering her fourteen-page report, Dr. Montgomery had met four times with each parent individually, once with each child individually, and once with each parent together with the children. Her report included summaries of these interviews. Dr. Montgomery had also consulted with Madelyn S. Milchman, Ph.D., from whom the Kinsellas briefly had received therapy as a couple beginning in 1988 and from whom plaintiff continued to receive therapy on an individual basis. Dr. Montgomery did not include notes from that consultation in her report. In addition, Dr. Montgomery apparently had reviewed a court-ordered addiction evaluation of plaintiff. Dr. Montgomery had not consulted with defendant's therapist, with John Jr.'s therapist, or with the family therapist treating the children and defendant.
According to Dr. Montgomery's report, defendant reported to Dr. Montgomery that plaintiff had had a drinking problem and had been physically abusive to both her and the children. She stated that the children were very fearful of their father and did not want to visit with him overnight. Defendant wanted plaintiff to have only very limited visitation. She also stated that she did not want plaintiff to have input into decisions regarding the children's welfare because she did not think that he and she could agree.
Plaintiff, on the other hand, admitted to Dr. Montgomery that he had been volatile and abusive with his wife at times, but claimed that she exaggerated the behavior. Plaintiff also admitted use of cocaine until November 1991 and excessive use of alcohol, but stated that his alcohol use diminished after he had decided to leave the marriage and that he currently did not suffer from an alcohol problem. That conclusion was confirmed to Dr. Montgomery by the addiction evaluation. Plaintiff denied physical abuse of his children, although he acknowledged that the children were somewhat frightened of him. He stated that he wanted regular, including overnight, visitation.
The children indicated to Dr. Montgomery that their father had hit them in the past and that they had witnessed their father being physically abusive to their mother. John Jr. stated that he wanted his father to refrain from drinking during visitation. He also was aware of his father's prior drug use. The psychologist's impression, however, was that the children were not as frightened of their father as their mother had described. She felt that some of John Jr.'s statements sounded rehearsed.
Dr. Montgomery recommended overnight visitation on alternate weekends and mid-week dinners for plaintiff with his children. She concluded that plaintiff did not appear to be a compulsive user of drugs or alcohol at that time. However, she recommended continued urine screening on a sporadic basis for the next year and that plaintiff refrain from drinking during visitation. Dr. Montgomery recommended continued psychotherapy for both plaintiff and defendant. Dr. Montgomery also recommended that the court appoint a mediator/monitor to work with the Kinsellas to develop a co-parenting plan, supervise visitation and address further issues as they arose.
In July 1994, the court appointed Jeffrey P. Weinstein, Esq., to "work out a custody and visitation agreement with the parties." On October 18, 1994, Mr. Weinstein submitted his report, stating that he was unable to work out a custody agreement but proffering recommendations to the court. He is also expected to testify at trial.
In his report, Mr. Weinstein stated that he had read a letter to the court from Dr. Montgomery dated June 22, 1994. In addition, he had read a July 15, 1994, report by James G. Garofallou, Ph.D., from whom John Jr. had been receiving therapy. Mr. Weinstein had met with the Kinsella family and with the parents' attorneys. He had also spoken on the telephone to Dr. Montgomery, Dr. Garofallou, Dr. Milchman and defendant's therapist, Dr. Oosting.
Mr. Weinstein reported that he believed that defendant was manipulating the children, especially John Jr., to give the impression that their father was more dangerous than he really was. Nevertheless, he reported that the children had indicated that their father hit them in the past and continued to yell at them, and that they knew about his drug use. Mr. Weinstein stated that the treating therapists for the parents had both been "real advocates for the positions of their clients," and that both had believed that their clients were good parents. Dr. Garofallou had stated that he thought John Jr. was truly afraid of his father, but that because John Jr. would not allow Dr. Garofallou to meet his father, Dr. Garofallou had no independent opinion about plaintiff. Dr. Garofallou agreed with Mr. Weinstein that John Jr. might have been repeating to Mr. Weinstein what he thought his mother wanted him to say. Mr. Weinstein reported: "I believe that John Jr. may be truly fearful of his father, but I do not believe that his father is the cause of the fear."
Mr. Weinstein recommended joint legal custody, with defendant having primary physical custody and plaintiff having alternate weekend visitation, plus one week night per week, and three weeks of vacation per year, plus alternate holidays. Mr. Weinstein reported that defendant would not agree to joint legal custody. The parties apparently did not agree on a visitation schedule either. Defendant also wanted plaintiff to submit to drug and alcohol testing, to which plaintiff suggested he might agree.
On January 15, 1995, defendant, who had obtained new counsel, filed an amended answer and counterclaim. The first count of the counterclaim again sought divorce on the ground of extreme cruelty, but contained more detailed factual allegations than the original counterclaim. Defendant alleged that plaintiff's physical and sexual abuse of her had dated from the beginning of the marriage in 1977, and that plaintiff had had a severe drinking problem from that time. Defendant also alleged that plaintiff had begun using cocaine in 1985.
Defendant alleged many specific instances of physical abuse against her and her children. She alleged that plaintiff had once severely injured her arm by twisting it in an attempt to make her drop her baby. She alleged that even before...
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