Leonard v. Leonard, 95-3632
| Citation | 673 So.2d 97 |
| Decision Date | 07 May 1996 |
| Docket Number | No. 95-3632,95-3632 |
| Parties | 21 Fla. L. Weekly D1117 Debra A. LEONARD, Appellant, v. Joseph H. LEONARD, Appellee. |
| Court | Court of Appeal of Florida (US) |
Louis K. Rosenbloum and David H. Levin of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A., Pensacola, for Petitioner.
Cynthia L. Heir of Anderson & Sellers, Pensacola, for Respondent.
By petition for writ of certiorari, we are asked to review an order denying the petitioner-wife's motion for a protective order and overruling her objections to depositions of mental health professionals and production of their records. Petitioner contends the trial court departed from the essential requirements of law by compelling discovery in violation of petitioner's psychotherapist-patient privilege. We agree, and grant the petition.
This cause arises in the context of a child custody dispute in a dissolution of marriage proceeding. The parties were married May 26, 1989, and lived together as husband and wife until 1994 when the wife filed a petition for dissolution of marriage. The parties have two children, who were three and four years of age when the trial court issued the order here under review. The wife's petition sought primary residential custody of the children; the husband's answer and counterpetition also sought primary residential custody of the children, placing the custody matter at issue. In an interim order dated November 4, 1994, the trial court granted primary residential custody of the children to the wife.
On April 11, 1995, the husband served notice that he would take the deposition of Dr. Terry Ptacek, a psychologist who counseled the wife in 1987, in connection with injuries sustained by the wife in an automobile accident. On May 1, 1995, the husband served notice of his intent to seek production of Dr. Ptacek's "entire file for Debra Leonard," then in the possession of Dr. Whibbs. On April 26, 1995, the husband served an unsworn motion for a psychological evaluation and social investigation of the wife, pursuant to section 61.20, Florida Statutes (1993), requesting that the trial court order the wife to submit to a psychological examination. The husband's motion listed eight behaviors of the wife which allegedly indicated a need for a psychological evaluation. 1 On May 17 and 18, 1995, the husband served notices of depositions duces tecum of Lynn McCreary, the wife's psychologist, and of Steve Gantman and Carol Allen, counselors at a local mental health clinic who counseled the wife's son by her previous marriage.
The wife filed an objection to the requested discovery on grounds that the subpoenas sought privileged information of a confidential nature between doctor and patient. The wife also filed a motion for a protective order, asserting as grounds therefor that the three individuals are mental health counselors, subject to the "psychiatrist/psychologist-patient privilege."
On August 17, 1995, the trial court conducted an evidentiary hearing on the parties' motions. With regard to the wife's alleged suicide attempt, the husband testified that in 1987 before the parties were married, he looked through the window of the wife's home and saw her slumped over a chair. The husband said he broke a window to enter the house, and called for an ambulance and the police. The husband further stated the wife was revived by emergency medical technicians, but he offered no other testimony or evidence about the incident or the cause of the wife's alleged unconscious state. The wife said she did not recall the incident.
The husband also referred to the wife's 1987 treatment with Dr. McCreary and Dr. Ptacek, as the source of his use of the term "obsessive-compulsive behavior" to describe the wife's behavior. The husband's allegations that the wife forged various instruments related to instances when the wife allegedly signed the husband's name on credit card applications and furniture store applications, and withdrew funds from the husband's bank account. The wife acknowledged making cash withdrawals from the husband's account, but testified she had done so throughout the marriage with the husband's knowledge and consent. The husband did not dispute the wife's statement that the withdrawn funds were deposited in a joint account for payment of household bills.
The parties offered conflicting testimony with respect to locks on the children's bedroom doors. The husband testified that, as a disciplinary measure, the wife reversed the locks on the children's bedroom doors, preventing them from leaving their rooms. The wife testified that the husband installed hook-and-eye locks on the children's bedroom doors. In a similar vein, the husband provided several examples of the wife's behavior which he viewed as an obsession with cleanliness. The wife countered with allegations of slovenly behavior by the husband.
The wife seeks relief from the trial court's order overruling her objections to discovery pertaining to mental health care provided to the wife and her son from a previous marriage, and authorizing the depositions and production of records of all mental health professionals who treated the wife and her son. The wife does not challenge the trial court's order directing both parties and their children to undergo independent psychological evaluations.
In a child custody dispute, the mental and physical health of both parents is a factor that...
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