Kreth v. Kreth
| Decision Date | 20 May 2002 |
| Docket Number | W2002-00983-COA-R10-CV |
| Parties | JOAN LOREVA KRETH v. TIMOTHY KERWIN KRETHIN THE COURT OF APPEALS OF TENNESSEE AT JACKSON Filed |
| Court | Tennessee Court of Appeals |
A Rule 10 Appeal from the Circuit Court for Shelby County No. CT-006726-00 The Honorable D'Army Bailey, Judge
This case is before the Court on application for extraordinary appeal pursuant to Tenn. R. App. P. 10. The applicant-father filed a petition to modify the final decree of divorce concerning his child support obligation, because the minor child was currently living with him. Mother filed an answer stating that the child should not be living with father and that father was violating the provisions of the permanent parenting plan entered at the time of the divorce. Subsequently, Mother filed, among other things, a "Motion for Psychological Evaluation of the Parties and Their Child." The trial court granted the motion and ordered such psychological evaluations as requested. Father has filed an application for a Rule 10 appeal. We grant the application and reverse the order of the trial court and remand the case for further proceedings.
David E. Caywood, Memphis, For Appellant, Timothy Kerwin Kreth
Amy J. Amundsen, Memphis, For Appellee, Joan Loreva Kreth
Tenn. R. App. P. 10; Extraordinary Appeal; Judgment of the Circuit Court Reversed and Remanded
OPINION
Plaintiff, Joan Loreva Kreth (Mother), and Defendant, Timothy Kerwin Kreth (Father), were divorced by final decree entered on June 12, 2001, which included a Permanent Parenting Plan providing for the minor child to reside one week with Mother and one week with Father. The decree also provided for Father to pay $3,500.00 per month child support for said child. On December 3, 2001, Father filed a petition to modify the Final Decree of Divorce, seeking primarily to be relieved of the child support obligation because the minor child was living with him. Father's petition states that following the divorce, both parties reconciled to the extent that Mother moved into Father's residence and began cohabitating with him in early September 2001. The parties continued this arrangement and began plans for a remarriage. The petition further avers that in October, the parties took a family vacation along with the minor child and that upon returning from the vacation, Mother moved out of Father's resident and on November 3, 2001, married a person named Jason Cromwell, who she allegedly had a relationship with prior to the divorce. The petition seeks, among other things, that Father be relieved of the obligation to pay cash child support and that Mother be required to pay child support to Father in addition to insurance premiums and other obligations which Father is currently responsible for.
Mother filed an answer to the petition virtually admitting the allegations thereof with explanations for the reasons therefor and denies that Father should be the primary residential parent and that he is obstructing the parenting time. The answer further avers that it is in the best interest of the child to live with Mother pursuant to the Permanent Parenting Plan and "that parents and child should immediately enroll in family counseling."
Subsequently, Mother filed, among other things, a "Motion for Counseling and Motion to Suspend Proceedings Pending Family Therapy and/or in the Alternative, Motion for Mediation Before Any Hearings." The motion alleges that Father has not followed the Permanent Parenting Plan, has not allowed or encouraged the minor to be with his mother, and that due to the level of emotions involved the mother, father, and son should be required to participate in family therapy. The motion also seeks suspension of the proceedings for three months to allow time for participation in the therapy. In support of the answer, Mother filed an affidavit alleging various wrongful acts on the part of Father. Father filed a response to Mother's motion setting out his version of the facts as they related to the attempted rehabilitation and the lack of success, and further responded to Mother's affidavit by denying the acts alleged against him and alleging various wrongful acts on the part of Mother. Although the allegations made by both parties could be material when this matter is heard in the trial court, they are not material for the issue before this Court concerning the order for psychological evaluation, and therefore we see no need to detail them here.
The trial court granted Mother's motion, stating in pertinent part:
1. The Motion for Psychological Evaluation is well taken as the court believes it will benefit from hearing from a well respected psychologist as to what parenting time and plan is in the son's best interest.
2. The court hereby orders that the parties and son be evaluated by Dr. Ciocca. The parties shall cooperate and sign all necessary releases and after his report is complete, the court will set this cause for an expedited hearing on the Petition to Modify Permanent Parenting Plan.
The trial court, by its order, is seeking "what parenting time and plan is in the son's best interest."
Tenn. R. Civ. P. 35.01 provides:
Order for Examination. When the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a suitably licensed or certified examiner or to produce for examination the persons in his custody or legal control. The order may be made only on motion for good cause shown and upon notice to the person to be examined and to all parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.
In Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 154376 (Dec. 5, 2001), this Court in considering the use of psychological evaluation in domestic cases stated:
Prior to the adoption of the Tennessee Rules of Civil Procedure, the Tennessee Supreme Court recognized the existence of a common-law power of courts to compel litigants to submit to physical examinations. Williams v. Chattanooga Iron Works, 131 Tenn. 683, 691, 176 S.W. 1031, 1033-34 (1915). However, the Court recognized that the courts should exercise this power "with great restraint and with careful attention to the rights of the plaintiff." Accordingly, the Court held that plaintiffs should not be required to undergo a physical examination unless the party seeking the examination has demonstrated "that it is necessary in order that justice may be done." Williams v. Chattanooga Iron Works, 131 Tenn. at 694-95, 176 S.W. at 1034; see also Union Pacific Ry. v. Botsford, 141 U.S. 250, 259, 11 S. Ct. 1000, 1004 (1891) (Brewer, J., dissenting) ().
With the advent in 1971 of the Tennessee Rules of Civil Procedure, Tennessee...
To continue reading
Request your trial