Oldham v. Greene

• Citation: 263 So.3d 807
• Decision Date: 27 December 2018
• Docket Number: No. 1D17-2238,1D17-2238
• Parties: Philip P. OLDHAM, Petitioner, v. Hillary E. GREENE, Respondent.
• Court: Court of Appeal of Florida (US)

263 So.3d 807

Philip P. OLDHAM, Petitioner,

v.Hillary E. GREENE, Respondent.

No. 1D17-2238

District Court of Appeal of Florida, First District.

December 27, 2018

Brian P. North of Kenny Leigh & Associates, Fort Walton Beach, for Petitioner.

Jill W. Warren of the Law Office of Jill W. Warren, PLLC, Pensacola, for Respondent.

M.K. Thomas, J.

Philip Oldham ("Father") seeks certiorari review of an order compelling him to undergo psychological testing as part of dissolution of marriage and custody proceedings with Hillary Greene ("Mother"). He argues the order is a departure from the essential requirements of law, because: 1) it does not meet the "in controversy" and "good cause" requirements of Florida Family Law Rule of Procedure 12.360 ; and 2) it does not specify the manner, conditions, and scope of the examination. We agree and grant the petition.

I. Facts

In 2017, Father petitioned for dissolution of the parties' marriage. In response, Mother filed an Answer and Counter-Petition for Determination of Paternity and answers to standard family law interrogatories. Standard Interrogatory 6(c) inquires, "[i]f the mental or physical condition of a spouse or child is an issue, identify the person and state the name and address of all health care providers involved in the treatment of that person for said mental or physical condition." In her answers, Mother did not identify the mental condition of Father as being at issue in the proceedings.

About a month later, Mother filed a "Motion for Social Investigation of Father" pursuant to " section 61.20, Florida Statutes ; and rule 12.360, Florida Family Law Rule of Procedure." She alleged Father had "uncontrolled fits of explosive rage manifested in screaming and other violent behaviors in the presence of the child." She maintained Father's mental health was detrimental to the child; specifically, his inability to control his temper lead to "explosive fits of rage," which included screaming and threats to damage personal property. Mother claimed Father was unable to "put the needs of the child above his." The alleged offensive behavior by Father did not occur in the window of time between the Mother's answers to interrogatories and her filing of the Motion for his evaluation, but predated it all. In the Motion, Mother asserted that Father's mental health should be evaluated to assist the trial court in determining a parenting plan which was in the best interest of the child.

When the motion hearing began, Father's counsel requested clarification on the request for mental health testing as follows: "Is [Mother] asking for a psychological analysis of [Father] or is she asking for a social investigation of the parties?" Mother's counsel answered, "[b]oth." Counsel continued, "we would like a psychological evaluation, but we would take a social investigation." Mother requested the trial court order supervised timesharing, every other weekend for Father.

The only witnesses at hearing were Mother and Father. Mother described being fearful and afraid. Mother testified Father would throw things around the garage. If he experienced computer issues, he would wield a golf club and stomp around spewing profanity. She further described uncontrollable fits of rage resulting from "anything" such as a dog barking outside, someone at the door or watching a Clinton-Trump debate. She expressed concern that the child might mimic Father's behavior and that Father could not parent the child by himself. On cross-examination, Mother acknowledged Father had not been arrested in the last ten years, had never been Baker Acted, reported for domestic violence nor reported to children and family services.

Father testified he had no history of psychological problems and denied lashing out in fits of rage or yelling at the child. He described his historical role as the primary caregiver in the home while Mother went back to school and worked. Father denied any need for supervised visitation and clarified he sought sole custody of the child.

At hearing, the trial court determined that Mother's motion constituted a request for a psychological examination under rule 12.360, rather than a request for social investigation under section 61.20, Florida Statutes. Regardless, on May 4, 2017, the trial court entered an "Order On Motion For Social Investigation Of Father," but within the pleading granted a compulsory evaluation pursuant to rule 12.360. Mother was to select a psychologist to perform the evaluation and pay the initial cost. The court orally detailed the purpose of the evaluation was to "namely address whether or not [Father] has an anger problem and whether or not that affects his ability to parent," but this was not included in the order. Until the evaluation was completed, the court ordered temporary majority timesharing for Mother and unsupervised, overnight timesharing every other weekend with Father. The order simply noted Mother "met her burden of an initial showing that the Father's mental health [wa]s in controversy and that good cause exist[ed]," but no factual findings were included. It further allowed each party to submit information for the psychologist to consider, with the exception of one-party consent audio recordings. In response, Father filed a petition for writ of certiorari seeking to quash the order compelling his psychological evaluation.

II. Analysis

Certiorari first requires material injury not remediable on plenary appeal; this is a threshold, jurisdictional requirement. See State, Dep't of Revenue v. Hartsell , 189 So.3d 363, 364-65 (Fla. 1st DCA 2016). Ordering a compulsory medical examination meets the jurisdictional threshold. J.B. v. M.M. , 92 So.3d 888, 889 (Fla. 4th DCA 2012). Next, and at issue here, the petitioner must demonstrate a departure from the essential requirements of law by showing the order violates clearly established principles of law resulting in a miscarriage of justice. Hartsell , 189 So.3d at 365. We find Father has met his burden.

Courts have two available avenues to compel the psychological evaluation of a party in a family law case: 1) as part of a social investigation pursuant to section 61.20, Florida Statutes ; and 2) pursuant to Florida Rule of Civil Procedure 1.360 and its companion Family Law Rule of Procedure 12.360. See Russenberger v. Russenberger , 639 So.2d 963, 965 (Fla. 1994). However, "parties are entitled to know whether the court is proceeding under the rule or the statute." Id. at 965. Here, the order references Mother's motion for "social investigation," but ultimately grants the psychological evaluation under rule 12.360.

A. Rule 12.360¹

Pursuant to rule 12.360, a request for a psychological examination must be related to "a matter in controversy," and the party must have "good cause for the examination." Fla. Fam. L. R. P. 12.360(a)(1),(2). The requesting party has the burden to satisfy the "in controversy" and "good cause" prongs. Manubens v. Manubens , 198 So.3d 1072, 1074 (Fla. 5th DCA 2016) ; see also Fla. Fam. L. R. P. 12.360(a)(1),(2). A court's failure to make any findings as to the requirements of rule 12.360 is a departure from the essential requirements of law. See Russenberger v. Russenberger, 623 So.2d 1244, 1245-46 (Fla. 1st DCA 1993), aff'd 639 So.2d 963 (Fla. 1994) ; Manubens , 198 So.3d at 1074-75 ; cf. Wade v. Wade , 124 So.3d 369, 375 (Fla. 3d DCA 2013) (explaining the complete failure to address a requirement "alone may be sufficient to overturn the trial court's order").

"In Controversy"

Seeking custody, in and of itself, does not place the parent's mental condition "in controversy," Wade , 124 So.3d at 375, nor is "mere relevance to the case" sufficient. Russenberger , 623 So.2d at 1245. The mental condition alleged "must directly involve a material element of the cause of action." Williams v. Williams , 550 So.2d 166, 167 (Fla. 2d DCA 1989). There must be "verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children." Wade , 124 So.3d at 375 ; see also Asteberg v. Russell , 144 So.3d 606, 608 (Fla. 2d DCA 2014) (a belief the primary residential parent is not supporting and promoting the child's relationship with the other parent did not put mental health in controversy); Williams, 550 So.2d at 167 (claims a father failed to use a car seat for the child, that the child wet his pants after a visit with the father, and that the father used bad language in front of the child and was unstable were insufficient to put the father's mental health in controversy). Mental health has been declared "in controversy" where a father seeking parental responsibility made comments to a minor child that he was contemplating suicide. Barry v. Barry , 159 So.3d 306, 307-08 (Fla. 5th DCA 2015). Baker Act proceedings or a diagnosed schizoaffective disorder

can place mental health in controversy. Bailey v. Bailey , 176 So.3d 344, 346-47 (Fla. 4th DCA 2015) ; J.B. , 92 So.3d at 890.

Mother fails to cite cases analogous to the instant appeal. Instead, she relies heavily on the fact the parties disagreed over the parenting plan and Father seeking sole custody, which alone is insufficient to trigger a rule 12.360 examination. Wade , 124 So.3d at 375. The focus of rule 12.360 is not on good or bad parenting, but on something larger, some greater indicator of deeper mental health concerns. With no actual violence to a person or threat of violence to a person, Father's alleged actions could be irresponsible and rash reactions to frustration with his current circumstances. However, those actions, while not preferable, may not rise to the level of significant mental health concerns warranting an intrusive evaluation. The burden of proof is heightened when the party subject to the request for an examination has not voluntarily placed that issue in controversy. Wade, 124 So.3d at 373. Just a month prior to requesting the mental examination, Mother filed her...