Peisach v. Antuna, 88-2666
| Citation | 14 Fla. L. Weekly 628,539 So.2d 544 |
| Decision Date | 07 March 1989 |
| Docket Number | No. 88-2666,88-2666 |
| Parties | 14 Fla. L. Weekly 628 Maria A. PEISACH, Petitioner, v. Jose M. ANTUNA, II, Respondent. |
| Court | Florida District Court of Appeals |
Frumkes and Greene, P.A., and Cynthia L. Greene and Mel Frumkes, Miami, for petitioner.
Bunnell and Woulfe, P.A., and Melanie G. May, Fort Lauderdale, for respondent.
Before SCHWARTZ, C.J., JORGENSON, J., and JOHN G. FERRIS (Ret.), Associate Judge.
Maria Peisach petitions for a writ of certiorari from an order of the circuit court which denied her motion for a protective order. For the reasons which follow, we grant the petition, quash the order denying the motion, and remand this cause to the trial court with directions to enter a protective order prohibiting the husband from deposing the wife's former psychiatrist and gynecologists.
In 1979, Maria Peisach and Jose Antuna were divorced. In November, 1987, the wife sued to enforce the husband's child-support obligations and to increase the support payments. The husband answered the complaint and filed a counterpetition for modification of the 1979 judgment. He alleged that a substantial change in circumstances required the court to grant him primary custody of the parties' minor child. The husband alleged, inter alia, that the wife was psychologically unstable and suffered from migraine headaches which prevented her from providing a stable home for the child.
The wife answered the counterpetition, admitted that she underwent psychiatric counselling approximately seven years ago following her divorce from Antuna, and stated that the short-term counselling "enabled her to provide an even more stable, nurturing, and healthy home" for the child. The trial court ordered the wife and husband to submit to psychological evaluations; the wife has expressed her willingness to comply with that order.
The husband sought to depose Dr. Casademont, the psychiatrist who treated the wife seven years ago, and Drs. Strassberg, Kennedy, and O'Sullivan, all of whom are gynecologists. The wife moved for a protective order; the trial court denied her motion. The wife petitioned this court for a writ of certiorari. This court stayed the order denying her motion for a protective order and now grants her petition.
The trial court departed from the essential requirements of the law when it refused to prohibit the husband from deposing the psychiatrist. "A custody order can only be modified upon a showing that there has been a substantial and material change in circumstances since the entry of the prior custody award, and that the best interests and welfare of the child will be provided by a change in custody." Adams v. Adams, 385 So.2d 688, 689 (Fla. 3d DCA 1980) (cites omitted). At issue, therefore, in custody modification proceedings are the parents' present circumstances. See, e.g., Ashleman v. Ashleman, 381 So.2d 364, 365 (Fla. 4th DCA 1980) () (emphasis added); Frye v. Frye, 205 So.2d 310, 314 (Fla. 4th DCA 1967) () (emphasis added). Testimony from a psychiatrist who briefly treated the wife seven years ago can be of no relevance to the wife's present ability to care for the child. 1 Because the wife has agreed to submit to a psychological examination, the husband and the court will be adequately apprised of her present psychological condition. See Roper v. Roper, 336 So.2d 654, 656 (Fla. 4th DCA 1976) () cert. denied, 345 So.2d 426 (Fla.1977).
Moreover, the trial court's order permitting the husband to depose Dr. Casademont runs afoul of the psychotherapist-patient privilege, section 90.503, Florida Statutes (1987). The husband claims that the wife waived that privilege by denying allegations of mental instability and stating that the short-term therapy seven years ago had made her an even better parent than she was before the counselling. The husband's argument is without merit. Mere allegations...
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