Hannah Ann Culbertson v. Randall Eric Culbertson
455 S.W.3d 107
| Tenn. Ct. App. | 2014Background
- Married parents separated; mother alleged abuse and mental instability by father in divorce and custody litigation; trial court initially entered protective order and supervised visitation.
- Parties agreed an evaluating psychologist (Dr. Clement) would evaluate the parents and could consult treating counselors; court later ordered a Rule 35 evaluation (Dr. Ciocca).
- Mother subpoenaed father's treating psychologists’ records; trial court ordered production; this Court stayed that order in an earlier interlocutory appeal (Culbertson I), directing in-camera review but preserving the psychologist-client privilege generally.
- After Culbertson I, father underwent a Rule 35 exam; Dr. Ciocca concluded father posed no danger and was stable; mother renewed requests for all of father’s treating-psychologist records.
- Trial court (July 23, 2012) held father waived the psychologist-client privilege broadly (based on testimony and allowing evaluators to consult treating providers) and ordered disclosure; father obtained an extraordinary appeal.
- This Court vacated the trial court’s order: holding at most a limited waiver — only as to privileged material the father voluntarily disclosed to the evaluators — remanded for factual findings about what (if anything) was actually disclosed, and directed reassignment and a prompt hearing on father’s petition for unsupervised parenting time.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Subject-matter jurisdiction / effect of first interlocutory appeal | Trial court retained power to correct its prior error and proceed with discovery matters not stayed | Appellate stay of April 4, 2011 order deprived trial court of jurisdiction to relitigate those disclosure issues before mandate | Parts of the July 23 order addressing matters within the earlier appeal were void for lack of jurisdiction; but trial court retained jurisdiction over new events occurring after the first appeal application was filed |
| Law-of-the-case / re-litigation | Trial court could revisit issues in light of new facts (new evaluator, new disclosures) | Trial court should have followed Culbertson I directive (in-camera review; protective approach) | Law-of-the-case issue pretermitted; court reviewed merits and applied Culbertson I principles in resolving waiver question |
| Waiver by testimony or relying on evaluating experts ("sword and shield") | Father placed his mental health at issue and thus waived privilege by testifying and using evaluator reports defensively | Brief admissions about diagnosis/treatment in response to allegations do not divulge privileged communications and do not automatically waive privilege | Testimony alone did not effect a general waiver; using evaluating experts’ publicly-filed reports did not waive treating-psychologist privilege |
| Waiver by disclosure to evaluators / compelled disclosure necessity | Allowing evaluators to consult treating providers or giving records to evaluators waived privilege as to all records; mother needs full records to test expert opinions (Rule 703) | Any voluntary disclosure to evaluators waives privilege only as to the specific disclosed material; absent waiver, Rule 35 examiners and in-court evaluations are the preferred, less-intrusive route | Court held only a limited waiver: privilege waived only as to privileged communications actually and voluntarily disclosed to Dr. Clement or Dr. Ciocca (or disclosed by treating providers with father’s express permission). Mother failed to show records were "necessary"; trial court must make factual findings on remand and may in camera-screen any disclosed materials |
Key Cases Cited
- Culbertson v. Culbertson, 393 S.W.3d 678 (Tenn. Ct. App. 2012) (earlier interlocutory opinion adopting a protective approach to psychologist-client privilege in custody disputes)
- Jaffee v. Redmond, 518 U.S. 1 (U.S. 1996) (recognizes strong policy favoring psychotherapist-patient privilege to promote effective treatment)
- Kinsella v. Kinsella, 150 N.J. 276, 696 A.2d 556 (N.J. 1997) (adopts protective approach; limited piercing of privilege only in compelling circumstances and favors court-appointed evaluators)
- Gates v. Gates, 967 A.2d 1024 (Pa. Super. Ct. 2009) (testimony about mental health does not automatically waive privilege; limited alternatives like independent evaluation preferred)