Mulligan v. Mulligan

• Decision Date: 15 June 2011
• Docket Number: No. 1-227 / 10-1752,1-227 / 10-1752
• Parties: IN RE THE MARRIAGE OF ALAN B. MULLIGAN AND AMY S. MULLIGAN Upon the Petition of ALAN B. MULLIGAN, Petitioner-Appellee, And Concerning AMY S. MULLIGAN, Respondent-Appellant.
• Court: Iowa Court of Appeals

IN RE THE MARRIAGE OF ALAN B. MULLIGAN AND AMY S. MULLIGAN

Upon the Petition of ALAN B. MULLIGAN, Petitioner-Appellee,

And Concerning AMY S. MULLIGAN, Respondent-Appellant.

No. 1-227 / 10-1752

COURT OF APPEALS OF IOWA

Filed June 15, 2011

Appeal from the Iowa District Court for Plymouth County, Edward A. Jacobson (petitioner's motion to compel) and Jeffrey A. Neary (other motions and trial), Judges.

Amy Mulligan appeals from the district court's ruling releasing her mental health records, as well as the child custody and visitation provisions of the dissolution decree. AFFIRMED IN PART AND REMANDED WITH DIRECTIONS.

Jennifer H. Cerutti of Iowa Legal Aid, Sioux City, for appellant.

Irene A. Schrunk, Sioux City, for appellee.

Heard by Potterfield, P.J., and Danilson and Tabor, JJ.

POTTERFIELD, P.J.

In this dissolution action, Amy Mulligan appeals the district court's order allowing Alan Mulligan access to her confidential medical and mental health records. She also appeals from the custody and visitation provisions of the dissolution decree. Amy has a statutory and constitutional right to privacy in her medical and mental health records, and Alan failed to override that right with a countervailing interest. The district court's order is reversed. We affirm the dissolution decree in part and remand to the district court for rehearing of the custody and attendant visitation and child support issues before a different judge.

I. Background Facts and Proceedings.

Amy Mulligan and Alan Mulligan are parents to seven-year-old A.M. Amy and Alan separated in December 2007 and Alan filed for dissolution of their marriage on February 27, 2008. In his petition, Alan asked that the parties be awarded joint legal custody of A.M., "with [Amy] having temporary and permanent physical care of the child with reasonable visitation to [Alan]."

On March 4, 2008, the district court entered an order approving the parties' stipulation placing A.M. in Amy's temporary physical care and granting Alan visitation. Alan moved to Michigan in June 2008 and did not exercise visitation with A.M. until March 2009.

On March 24, 2009, more than a year after the temporary order was filed and three days before the discovery deadline, Alan filed a motion to continue the trial date due to a conflict with his new attorney's schedule.¹ In his motion to continue, Alan also asserted a "need to amend petition" because "[o]n March 18,2009, Alan first learned that [in] his Petition for Dissolution of Marriage he conceded primary physical care to Amy." Alan's motion for continuance asserts his prior attorney had failed to conduct discovery and that Alan was unaware of a prior court order imposing sanctions against him, including that "he was prohibited from calling any witnesses or objecting to any evidence on behalf of himself." He asked that he be allowed to engage in discovery and specifically requested, "[a]t a minimum":

a. Amy's mental health records from Plains Area Mental Health Center. Alan believes that Amy's mental health records from this facility span many years going back to her minority and will reveal the severity of Amy's mental health condition.

b. Amy's 2007 mental health commitment Court file, including any and all reports, records, etc. submitted by Dr. Dean and/or Mercy Medical Center and/or Dr. K. Patra.

c. Amy's 2007 medical/mental health records from Mercy Medical Center.

d. Amy's 2008 mental health commitment Court file, including any and all reports, records, etc submitted by Dr. Dean and/or SLRMC and/or Dr. K. Patra.

e. Amy's 2008 medical/mental health records from SLRMC.

f. Amy's records from Jackson Recovery Center a/k/a Gordon Recovery Center to the present date.

g. All of Dr. Patra's records concerning Amy.

h. All of Dr. Dean's records concerning Amy.

i. All records from CAHSA/Cathy Van Maanen concerning Amy.

j. All records from CSADV concerning Amy.

k. Relevant police reports.

l. Live testimony from various persons with knowledge of Amy including; but not limited to: Amy's parents, Amy's counselor from Jackson Recovery and all of Amy's counselors from Plains Area Mental Health Center. 8. There is a grandparent visitation companion case to this dissolution case: "In the Iowa District Court for Plymouth County,Jerry L. and Susan B. Ashenfelter, Plaintiffs,² v. Alan B. and Amy S. Mulligan, Defendants, Case No. DRCV 031730.

9. The issue of the importance of Amy's mental health records was squarely before the Court by Plaintiffs' Motion to Compel and Defendant Amy S. Mulligan's Motion for Protective Order.

10. By Ruling on Motion to Compel and for Protective Order, the Court, even in a grandparent visitation case, considered the child's best interest to be of paramount importance. Accordingly, the Court permitted the discovery of Amy's mental health and related records (That Ruling by the Court is now on appeal to the Iowa Supreme Court in Supreme Court No. 08-2075.).³

That same date, Alan also filed a motion to amend the temporary visitation and child support, as well as an amended petition for dissolution in which he sought joint legal custody and physical care of A.M.

On April 3, 2009, Alan filed a notice of service of subpoenas. Amy moved to quash the subpoenas on April 6, 2009, asserting "[t]hese exact same records were asked for in discovery" in Ashenfelter v. Mulligan, and "[t]he issue of whether these records can be released is the exact issue on interlocutory appeal."

On May 1, 2009, the district court (Jeffrey A. Neary, Judge) entered an order (1) granting the motion to continue trial and ordered the court administrator to reschedule discovery deadlines; (2) reconsidered its prior ruling on sanctions, ordered Alan to pay $1000 in attorney fees to Amy, and struck prior restrictionsas to Alan's ability to present evidence; (3) granted the motion to amend the petition; (4) granted the motion to quash the subpoenas "based upon its rulings on the other motions noted herein and will consider discovery disputes between the parties . . . as they arise"; and (5) modified Alan's visitation due to his move to Michigan.

Thereafter, Alan propounded numerous discovery requests to which Amy objected. Alan filed a motion to compel and Amy filed for a protective order asserting the records were confidential pursuant to Iowa Code section 622.10 (2009).⁴ On August 11, 2009, the district court (Edward A. Jacobson, Judge) "deem[ed] that at least potentially this matter constitutes a civil action in which the condition of the 'the person in whose favor the prohibition is made is an element or factor of the claim . . .'" and ordered Amy to provide "all of the medical records requested to the court for an in camera review" after which it would determine "which records, if any, fit within the exception provided" in section 622.10(2).⁵

On October 23, 2009, Judge Jacobson ruled:

The balance of the medical records primarily relate to inpatient treatment and diagnoses, both on a voluntary and involuntary basis of mental health and/or substance abuse conditions, which the court deems to be both pertinent and discoverable.

In so saying, the court makes no decision on the admissibility of these records at trial, but for purposes of expert examination certainly they are discoverable records.

IT IS ORDERED, ADJUDGED AND DECREED that the records referred to above be and the same are hereby provided to counsel for Mr. Mulligan, to be used only as follows:

a. For admission in court at the custody hearing, if deemed appropriate by the trial judge.

b. For examination by [Alan's counsel] Ms. Schrunk, her client and her expert witness or witnesses.

c. The records shall not be disclosed to any other person. The court is aware that the disclosure of these same records to the parents of Mrs. Mulligan is currently on appeal to the Iowa Supreme Court. The court specifically directs that these records are not to be provided to her parents, unless and until the Supreme Court orders them provided.

Finally, the court orders that upon completion of the child custody litigation trial, the records not admitted into evidence shall be either a) returned to Mrs. Mulligan, or b) destroyed, in a verifiable manner.

The court is preparing an envelope in which to place the records that it orders discovered by counsel and will cause them to be delivered to the Woodbury County Courthouse where they may be picked up by Ms. Schrunk.

(Emphasis added.) Approximately 359 pages of Amy's medical records were thus released.

On March 19, 2010, Amy moved in limine to exclude from trial privileged and protected medical and mental health records, as well as Alan's expert witness testimony based upon that information.

Trial began on April 20, 2010. Amy objected to Exhibits 1, 2, and 46, because they were confidential, protected medical records. The district court (byJudge Neary) admitted the exhibits subject to the objections. Objection was also raised when Alan's counsel attempted to cross-examine Amy using those exhibits. The district court then stated:

Do you wish to have a standing objection to the consideration by this Court of any of the mental health records that may be discussed and/or any area of inquiry made by Miss Schrunk? [Amy's counsel]: Yes, Your Honor

THE COURT: Okay. I'll give you a standing objection with regard to any area of inquiry in the record or any documentation of testimony that relates to mental health records and/or treatment of Amy Mulligan. And I will reserve ruling on those individual objections and the standing objections as well.

No further objections on this ground were lodged.

Following trial, the district court dissolved the parties' marriage, distributed the marital property, awarded the parties joint legal custody, awarded physical care of A.M. to Alan, and ordered Amy to pay child support. The district court awarded Amy visitation during the school year "one weekend every other month" and four weeks during the summer. The court's findings of fact and conclusions of law were filed...