Paul v. Paul

• Decision Date: 30 January 1979
• Docket Number: No. 78-1178,78-1178
• Citation: Paul v. Paul, 366 So.2d 853 (Fla. App. 1979)
• Parties: Seymour PAUL, Petitioner, v. Mary PAUL, Respondent.
• Court: Florida District Court of Appeals

Page 853

366 So.2d 853

Seymour PAUL, Petitioner, v. Mary PAUL, Respondent.

No. 78-1178.

District Court of Appeal of Florida, Third District.

Jan. 30, 1979.

Robert Bakerman and Ira B. Price, Miami, for petitioner.

Michael H. Weisser, North Miami Beach, for respondent.

Before PEARSON, HENDRY and BARKDULL, JJ.

PER CURIAM.

Petitioner seeks our writ of common law certiorari to review an order of the circuit court, entered in a dissolution of marriage proceeding requiring the petitioner to submit to a mental and physical examination.

The sole question presented for our consideration is whether the record reflects that the two essential prerequisites have been satisfied regarding compulsory mental and physical examination.

Pursuant to Florida Rule of Civil Procedure 1.360(a) and the case law authority interpreting same, the mental condition of the party against whom the order is sought must be "in controversy," i. e., directly involved in some material element of the cause of action or defense and that "good cause" be shown, i. e., that the mental state of the party, even though in controversy, could not adequately be evidenced without assistance of expert medical testimony. Gasparino v. Murphy, 352 So.2d 933 (Fla.2d DCA 1977).

Petitioner/husband instituted the action seeking dissolution of marriage, partition of the parties' residence, and the establishment of a special equity in the wife's separate property; wife timely served an answer and counterclaim, containing admissions and denials and seeking dissolution and establishment of a special equity in the husband's separate property. Thereafter wife filed affirmative defenses to husband's special equity claim, and the husband filed his answer, affirmative defenses to wife's counterclaim, as well as a motion to require the wife to submit to a physical examination. Wife subsequently filed a motion to require the husband to submit to a physical and mental examination. After hearing on the motions, the trial court granted both motions for examinations of the respective parties. Wife has not sought review of the order with regard to her physical examination, ¹ but husband has and the order compelling him to submit to a physical and mental examination is the subject of this common-law writ of certiorari.

The wife's unverified and unsupported motion to require petitioner to submit to a physical and mental examination recites as grounds for the examinations: ". . . that on information and belief the...