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Zarzaur v. Zarzaur

Florida Court of Appeals, First District

March 27, 2017

JOSEPH A. ZARZAUR, JR., Respondent.


         Petition for Writ of Certiorari - Original Jurisdiction. Linda L. Nobles, Circuit Court for Escambia County, Judge.

          James L. Chase and Hunter R. Higdon of James L. Chase & Associates, PLC, Pensacola, for Petitioner.

          Robert R. Kimmel, Pensacola, for Respondent.

          PER CURIAM.

         Petitioner, Wife, seeks certiorari review of the trial court's discovery order requiring her to disclose "all her records regarding treatment, diagnosis, care and medications from all her psychologists, psychiatrists, counselors, and medical doctors who have treated her for any mental health issues or prescribed pain medication or any mental health medications to her in the last seven (7) years." The order also requires Wife to submit to deposition questioning and answer interrogatories with the same scope. We grant Wife's Petition in part.

         Certiorari Jurisdiction.

         We have certiorari jurisdiction to review orders granting discovery that create a material injury not remediable on appeal and constitute a departure from the essential requirements of law. State, Dep't of Children & Families v. B.D., 102 So.3d 707, 708 (Fla. 1st DCA 2012); Mullins v. Tompkins, 15 So.3d 798, 800 (Fla. 1st DCA 2009). Erroneous disclosure of medical records qualifies as irremediable harm. Scully v. Shands Teaching Hosp. & Clinics, Inc., 128 So.3d 986, 988 (Fla. 1st DCA 2014) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995); James v. Veneziano, 98 So.3d 697, 698 (Fla. 4th DCA 2012)).

         Facts and Procedural History.

         Upon filing for dissolution in 2012, the parties agreed to 50/50 timesharing of their minor child, born in 2008. The parties maintained 50/50 timesharing until February of 2015, when Husband initiated involuntary commitment proceedings against Wife under the Marchman Act, [1] alleging Wife abused prescription drugs, had been under the influence of drugs or medications while driving their child, and had exhibited suicidal tendencies and episodes of violence. He simultaneously moved to suspend 50/50 timesharing, based on the Marchman Act proceeding and his allegations supporting it. The court gave him total parental responsibility, suspending Wife's parenting time. After one day of Marchman Act evaluation, the examining physician's report concluded there was "no documented abuse."

         Wife then moved to reinstate 50/50 timesharing, which Husband opposed. Both parties consented to independent psychological evaluations pursuant to section 61.20 of the Florida Statutes.[2] The trial court appointed an independent psychologist, who obtained medical/psychological and counseling records, interviewed Wife and Husband separately, administered written tests, conducted home visits, and interviewed the head of the child's school. He completed a written evaluation addressing the statutory factors of the child's best interests. § 61.13(3), Fla. Stat. He recommended that the child continue to live with Husband until the end of the 2016 school year pending an updated evaluation, but that Wife should be given more time with the child during that time.

         After an evidentiary hearing, the trial court gave Wife some supervised timesharing with the child, but the parties continue to dispute the proper timesharing. In connection with the continued dispute, Husband sought disclosure of Wife's mental health records, asserting that Wife had placed her mental health at issue. Wife's counsel argued that Wife had not placed her mental health at issue in a claim or defense, and that the requested discovery was overbroad and improper. Further, Wife's counsel argued that any issues had already been addressed by the independent psychological exam to which both parties had agreed, eliminating any basis for the broad discovery Husband requested. Wife's counsel requested an evidentiary hearing and in-camera review of any other mental health documents to determine whether they should be produced.

         The Order Under Review.

         In the order under review, the trial court granted Husband access to Wife's mental health records for the past seven years, not limited to those provided to the independent psychologist, and ...

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