Schetter v. Schetter
| Decision Date | 04 September 1970 |
| Docket Number | No. 70--389,70--389 |
| Citation | 239 So.2d 51 |
| Parties | Marcella SCHETTER, Appellant, v. C. B. SCHETTER, Ernest R. Tashea and Others, Consolidated, Appellees. |
| Court | Florida District Court of Appeals |
Donald I. Bierman, of Pearson & Josefsberg, Miami, for appellant.
Thomas B. Duff and J. Carrington Gramling, Jr., of Duff, Brown & Gramling, Miami, for C. B. Schetter.
A. J. Thomas, Jr., of James, Bielejeski, Lunny & Thomas, Fort Lauderdale, for Raymond J. Hare, Guardian ad Litem for Marcella Schetter.
Defendant in the pending divorce action below, Marcella Schetter, appeals from an order of the circuit court appointing a guardian ad litem on her behalf individually and as president of Mar-Ken Corporation. We reverse.
The trial court, while finding the defendant 'not incompetent' intervened as an equity court to appoint a guardian to protect her interests in the action. The inherent power of the circuit court for invocation of such equitable intervention under Section 744.06(3), Fla.Stat., F.S.A., is discussed in Peppard v. Peppard, Fla.App.1967, 198 So.2d 68.
The record reveals that defendant's attorney who initiated the motion to appoint a guardian ad litem, had two lengthy conversations with defendant concerning a possible continuance of the trial of the action. The attorney tape-recorded the second of these conversations without telling defendant that he had done so until the end of the conversation, and submitted the recording to a psychiatrist without defendant's knowledge or consent for the purpose of determining whether a guardian ad litem should be appointed for her. The psychiatrist testified at a hearing that, based on portions of the tape-recorded conversation, for the defendant to continue to handle her affairs might render her 'psychotic.' Defendant's attorney did not testify at the hearing, but supported his motion with an affidavit stating that the defendant had acted irresponsibly during the two telephone conversations in question.
The hearing resulted in the appointment of a guardian ad litem for the defendant, and it is clear the foregoing conversations had a significant and vital role in the trial judge's conclusion.
Of critical significance, however, is the fact that the defendant refused to release her attorney-client privilege at the hearing, and the court's specific finding that the conversations were privileged. Therefore, it must be inferred that since the court allowed the testimony of the psychiatrist based on the recorded conversation, over objections on the privilege theory, the court did not regard the privilege as extending to the testimony of a third party.
We disagree. Basic to the assertion of the attorney-client privilege is that the communication in question must have been made in confidence, as we conclude it was in this case. 'In order to be privileged, a communication must be made in confidence of the relationship and under circumstances from which it may reasonably be presumed that it will...
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Lebowitz v. State
...the psychiatrists, and under Fla.Stat. § 90.242, F.S.A. his conversations with the psychiatrists were privileged. Cf., Schetter v. Schetter, Fla.App.1970, 239 So.2d 51. Moreover, any error in the court's ruling was harmless under Fla.Stat. § 924.33, F.S.A. because from the record we cannot ......
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Olds v. State, 74--132
...ordinarily do not apply if a third party were present while the statements in question were being made. In Schetter v. Schetter, 239 So.2d 51 (4th D.C.A.Fla.1970) the court 'Basic to the assertion of the attorney-client privilege is that the communication in question must have been made in ......
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Tucker v. State
...However, Tucker claims that the privilege is personal to him and could only be waived by him, not his attorney. In Schetter v. Schetter, 239 So.2d 51, 53 (Fla. 1st DCA 1970), an attorney tape recorded his conversations with his client and gave the tape to a psychiatrist. On the basis of thi......
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Proffitt v. State, 45541
...in evidence, wheresoever or in whosesoever hands it may be. Mercer v. State, 40 Fla. 216, 24 So. 154, 158 (1898). In Schetter v. Schetter, 239 So.2d 51 (Fla.App.1970), an attorney recorded a conversation he had with his client over the telephone, without telling the client until the end of ......