Usen v. Usen

• Decision Date: 07 May 1971
• Citation: 359 Mass. 453,269 N.E.2d 442
• Parties: Barbara W. USEN v. Richard S. USEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 442

269 N.E.2d 442

359 Mass. 453

Barbara W. USEN v. Richard S. USEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued March 5, 1971.

Decided May 7, 1971.

John H. Henn, Boston (Jerome Preston, Jr., Boston, with him) for Barbara W. Usen.

Gerald Gillerman, Boston (Steven R. Kaye and Joseph B. Abrams, Boston, with him) for Richard S. Usen.

Before TAURO, C.J., and SPALDING, SPIEGEL, REARDON, and BRAUCHER, JJ.

BRAUCHER, Justice.

This is an appeal by the mother of a minor child from a decree entered in the Probate Court removing the child from her custody and awarding custody to the father. She claims the following errors: (1) The judge permitted at trial an amendment of a petition to restrain removal of the child from the Commonwealth under G.L. c. 208, § 30, transforming it into a petition for change of custody under G.L. c. 208, § 28. (2) The judge admitted testimony of the mother's psychotherapist without compliance with the requirements of G.L. c. 233, § 20B. In addition, she claims that the decree is not adequately supported by the evidence and the subsidiary findings. The judge made a report of material facts and the evidence is reported.

1. The parties were divorced on December 9, 1966, and custody of the child was awarded to the mother. On August 22, 1969, the father filed a petition for an order temporarily restraining the mother from removing the child from the Commonwealth. On August 26, 1969, the temporary restraining order prayed for was issued and temporary custody was awarded to the father but, by agreement, physical custody remained with the mother pending trial. On Friday, September 26, 1969, at the trial, the father moved to amend the petition to seek award of custody to him.

Over the mother's objection and exception, the judge allowed the motion to amend, 'with the provision that this case will be put over to the first part of the week until you have an opportunity to produce evidence that you want and the type of evidence that you are required to present.' Later on the same day, Friday, counsel for the mother (not her counsel on this appeal) agreed that the trial should resume Monday morning, if he were allowed 'to answer the call of the list in Middlesex.' Counsel for the father agreed to this, and the trial reconvened Monday, September 29, 1969, and lasted through Thursday, October 2, 1969.

The allowance of the motion to amend was a matter within the discretion of the judge. Rule 7 of the Probate Courts (1959). G.L. c. 231, § 51. See Clifford v. Clifford, 354 Mass. 545, 546--547, 238 N.E.2d 522. There was no abuse of discretion. The only prejudice suggested concerns the time needed by the mother's counsel to prepare for trial. He did not ask for a continuance but agreed to the resumption of trial on a specified date after the motion to amend had been allowed.

2. The mother excepted to the admission of evidence disclosing communications between her and two psychotherapists, claiming privilege under G.L. c. 233, § 20B, inserted by St.1968, c. 418. ¹ The father called as a witness a doctor who had been her psychotherapist, and his extensive testimony disclosed conversations with her relating to the diagnosis and treatment of her mental and emotional condition. In addition, two letters written by psychotherapists in February, 1969, were admitted as part of a hospital record under G.L. c. 233, § 79. One letter was signed by the same psychotherapist who testified and the other by a second psychotherapist; each recorded conversations between her and the signing psychotherapist relative to the diagnosis or treatment of her mental or emotional condition. The father now argues that the hospital record properly became public information when admitted in evidence, and that the doctor's testimony does no more than follow closely his written opinion which forms a part of the hospital record.

'Apparently the legislation making this hearsay evidence (in hospital records) admissible was enacted primarily to relieve the physicians and nurses of public hospitals from the hardship and inconvenience of attending court as witnesses to facts which ordinarily would be found recorded in the hospital books.' Leonard v. Boston Elev. Ry., 234 Mass. 480, 482, 125 N.E. 593. See McClean v. University Club, 327 Mass. 68, 75, 97 N.E.2d 174. There is no indication of any legislative purpose to forestall the protection of privileged communications, and if there were it would yield to subsequent legislation granting a privilege. The 1968 statute granting the privilege defines 'communications' ² to include 'conversations * * * before, during or after institutionalization * * * and any records, memoranda or notes of the foregoing.' We think it is clear that the patient did not lose her privilege to prevent disclosure of a communication merely because it was made part of a hospital record.

3. The father requested the judge to proceed under one of six exceptions stated in the 1968 privilege statute, regating application of the statute: '(e) In any child custody case in which either party raises the mental condition of the other party as part of a claim or defense, and the psychotherapist believes that disclosure is necessary because the mental condition of the patient would seriously impair his ability to care for the child, and thereafter makes such disclosure to the judge in chamber; and the...