O'NEILL v. O'NEILL

• Decision Date: 16 August 2002
• Docket Number: No. 5D01-3727.,5D01-3727.
• Citation: O'NEILL v. O'NEILL, 823 So.2d 837 (Fla. App. 2002)
• Parties: Amy W. O'NEILL, Petitioner, v. George C. O'NEILL, Respondent.
• Court: Florida District Court of Appeals

823 So.2d 837

Amy W. O'NEILL, Petitioner, v.George C. O'NEILL, Respondent.

No. 5D01-3727.

District Court of Appeal of Florida, Fifth District.

August 16, 2002.

Mark P. Rabinowitz, Seymour Benson, and Michael P. Sampson of Holland & Knight, LLP, Orlando, for Petitioner.

John W. Frost and Robert S. Swaine of Frost Tamayo Sessums & Aranda, P.A., Bartow, for Respondent.

CASANUEVA, DARRYL C., Associate Judge.

In this original proceeding pursuant to Florida Rule of Appellate Procedure 9.100(c), Amy W. O'Neillpetitions for a writ of certiorari to quash the trial court's order denying her motion for a protective order.Because the trial court's order does not depart from the essential requirements of law, seeParkway Bank v. Fort Myers Armature Works, Inc.,658 So.2d 646(Fla. 2d DCA1995), we deny the petition.

The parties were married on September 23, 1989, and have five children, all still minors.The O'Neills were divorced on May 15, 2000.During the dissolution proceedings, George C. O'Neill sought his wife's psychological and psychiatric records.Finding that Ms. O'Neill's privacy interest outweighed the need for the records, the trial court at that time denied Mr. O'Neill's request.In the final judgment of dissolution, entered after the parties reached a settlement agreement at mediation, the trial court designated Ms. O'Neill as the primary residential parent for all five children.

Mr. O'Neill began the present action on October 22, 2001, when he filed a verified emergency ex parte petition for temporary modification of child custody.He alleged, inter alia, that his former wife suffered from alcoholism and an addiction to controlled substances, that she had been admitted in early 2001 to a residential treatment center, that she had used a number of illegal substances in the presence of the children, and that on October 18, 2001, she was admitted to the psychiatric ward of a local hospital after making suicidal threats to a friend and saying that she would "take the children with me."Mr. O'Neill also alleged that her alcohol and substance abuse constituted a substantial and material change in circumstances that put the children's safety at risk.In conjunction with the emergency petition, Mr. O'Neill served a notice on his former wife to produce at a hearing all records pertaining to her stay at the treatment center and the hospital's psychiatric ward.In response, Ms. O'Neill moved for a protective order.

Ms. O'Neill's motion for a protective order asserted that Mr. O'Neill's request to produce invaded her privacy rights, violated her psychotherapist-patient privilege, and, furthermore, that neither her mental nor her emotional condition was placed in issue.The trial court denied her the protective order on the ground that it could not properly determine custody of the minor children without vital information about her mental health and substance abuse.The court, therefore, required her to produce treatment center and hospital records that were made for the purpose of diagnosis or treatment of her mental or emotional condition, including alcoholism and other drug addiction.

A petition for certiorari to review a discovery order is appropriate "when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal."Allstate Ins. Co. v. Langston,655 So.2d 91, 94(Fla.1995).The reviewing court must first determine whether the petitioner has made a prima facie showing that the order complained of creates irreparable harm.Morgan, Colling & Gilbert, P.A. v. Pope,798 So.2d 1, 3(Fla. 2d DCA2001).Because the petitioner here, Ms. O'Neill, has met this threshold, we must determine whether there has been a departure from the essential requirements of law.City of Oldsmar v. Kimmins Contracting Corp.,805 So.2d 1091, 1092(Fla. 2d DCA2002).

Ms. O'Neill contends that the trial court's order departs from the essential requirements of law by violating the statutory psychotherapist-patient privilege set out in section 90.503, Florida Statutes(1998).We reject her contention.As this court has recently noted, the common law did not recognize a psychotherapist-patient privilege.Guerrier v. State,811 So.2d 852, 854(Fla. 5th DCA2002).Because evidentiary privileges were unknown at common law, they are generally looked upon with disfavor.Nat'l Union Fire Ins. Co. of Pittsburgh v. KPMG Peat Marwick,742 So.2d 328, 331(Fla. 3d DCA1999),approved,765 So.2d 36(Fla.2000).Accordingly, the statute must be strictly construed.Guerrier,811 So.2d at 854 n. 2(citingAdy v. Am. Honda Fin. Corp.,675 So.2d 577, 581(Fla.1996)).

Subsection (2) of section 90.503 sets forth the initial parameters of the privilege, stating that a

patient has a privilege to refuse to disclose... confidential communications or records made for the purpose of diagnosis or treatment of the patient's mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

Subsection (4) then carves an exception to this privilege: there is no privilege for a communication "relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense."Section 90.503 reflects an awareness that "confidentiality is essential to the conduct of successful psychiatric care."Attorney ad Litem for D.K. v. Parents of D.K.,780 So.2d 301, 306(Fla. 4th DCA2001).

Section 61.13(2)(a), Florida Statutes(1999), requires a trial court to decide the custody of minor children by ascertaining what is in the child's best interest.In so determining, one factor that must be weighed is the mental health of each parent, although a parent may assert the evidentiary privilege of section 90.503.An...