Smith v. Smith
| Decision Date | 29 June 2011 |
| Docket Number | No. 4D11–354.,4D11–354. |
| Citation | 64 So.3d 169 |
| Parties | Natalia G. SMITH, Petitioner,v.Geoffrey SMITH, Respondent. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Linda L. Weiksnar of Crary Buchanan, Stuart, for petitioner.Stuart R. Manoff and Rebecca A. Frieden of Stuart R. Manoff & Associates, P.A., and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, for respondent.PER CURIAM.
Petitioner, Natalia Smith (wife), petitions this court for writ of certiorari following the trial court's denial of her motion for a protective order. Respondent, Geoffrey Smith (husband), sought his wife's medical records, having alleged that she waived her psychotherapist-patient statutory privilege. Following a motion calendar hearing, the trial court granted the Husband's Motion to Waive [Wife's] Psychotherapist privilege, allowing the Husband to obtain “any and all mental health records” from the Wife, beginning in 2006.
We find that the trial court departed from the essential requirements of law by improperly relying upon the arguments of counsel as evidence and quash the January 27, 2011 order which determined that the wife is unable to assert her statutory privilege. We grant the petition for the trial court to hold an evidentiary hearing on the matter.
Cruz–Govin v. Torres, 29 So.3d 393, 395 (Fla. 3d DCA 2010); see also Urbanek v. Urbanek, 46 So.3d 1235 (Fla. 4th DCA 2010).
The Smiths are in the middle of a dissolution proceeding. They have three minor children who are currently living with the husband. Timesharing is at issue. The husband seeks a majority of timesharing and requests that the wife have supervised visits. The wife seeks greater time with her children. The husband argues that the wife put her mental health at issue following an alleged suicide attempt in January 2010 1—a calamitous event—and asserts that she therefore waived her statutory psychotherapist-patient privilege, under section 90.503, Florida Statutes (2011):
(2) A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, 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.
The wife contests this allegation, arguing that a stipulation made by her attorney to “mental health issues” was not an admission and does not waive her privilege. She argues that the alleged calamitous event did not take place during the pendency of the proceedings and the timing of the calamitous event is dispositive. The wife further asserts that a hearing is required to determine whether the privilege was waived and to consider whether a less invasive means of obtaining information should be used.
Most of the “facts” giving rise to the trial court's order finding waiver of the wife's privilege were obtained through arguments made by husband's counsel. As we have explained, we reject the use of unsworn assertions made by attorneys as evidence. Leon Shaffer Golnick Adver., Inc. v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982).
[T]he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which trial courts may consider as establishing facts. It is essential that attorneys conduct themselves as officers of the court; but their unsworn statements do not establish facts in the absence of stipulation. Trial judges cannot...
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