Philip P. Oldham v. Hillary E. Greene ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2238
_____________________________
PHILIP P. OLDHAM,
Petitioner,
v.
HILLARY E. GREENE,
Respondent.
_____________________________
Petition for Writ of Certiorari—Original Jurisdiction.
Mary Polson, Judge.
December 27, 2018
M.K. THOMAS, J.
Philip Oldham (“Father”) seeks certiorari review of an order
compelling him to undergo psychological testing as part of
dissolution of marriage and custody proceedings with Hillary
Greene (“Mother”). He argues the order is a departure from the
essential requirements of law, because: 1) it does not meet the “in
controversy” and “good cause” requirements of Florida Family Law
Rule of Procedure 12.360; and 2) it does not specify the manner,
conditions, and scope of the examination. We agree and grant the
petition.
I. Facts
In 2017, Father petitioned for dissolution of the parties’
marriage. In response, Mother filed an Answer and Counter-
Petition for Determination of Paternity and answers to standard
family law interrogatories. Standard Interrogatory 6(c) inquires,
“[i]f the mental or physical condition of a spouse or child is an
issue, identify the person and state the name and address of all
health care providers involved in the treatment of that person for
said mental or physical condition.” In her answers, Mother did not
identify the mental condition of Father as being at issue in the
proceedings.
About a month later, Mother filed a “Motion for Social
Investigation of Father” pursuant to “section 61.20, Florida
Statues; and rule 12.360, Florida Family Law Rule of Procedure.”
She alleged Father had “uncontrolled fits of explosive rage
manifested in screaming and other violent behaviors in the
presence of the child.” She maintained Father’s mental health was
detrimental to the child; specifically, his inability to control his
temper lead to “explosive fits of rage,” which included screaming
and threats to damage personal property. Mother claimed Father
was unable to “put the needs of the child above his.” The alleged
offensive behavior by Father did not occur in the window of time
between the Mother’s answers to interrogatories and her filing of
the Motion for his evaluation, but predated it all. In the Motion,
Mother asserted that Father’s mental health should be evaluated
to assist the trial court in determining a parenting plan which was
in the best interest of the child.
When the motion hearing began, Father’s counsel requested
clarification on the request for mental health testing as follows: “Is
[Mother] asking for a psychological analysis of [Father] or is she
asking for a social investigation of the parties?” Mother’s counsel
answered, “[b]oth.” Counsel continued, “we would like a
psychological evaluation, but we would take a social investigation.”
Mother requested the trial court order supervised timesharing,
every other weekend for Father.
The only witnesses at hearing were Mother and Father.
Mother described being fearful and afraid. Mother testified Father
would throw things around the garage. If he experienced computer
issues, he would wield a golf club and stomp around spewing
profanity. She further described uncontrollable fits of rage
resulting from “anything” such as a dog barking outside, someone
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at the door or watching a Clinton-Trump debate. She expressed
concern that the child might mimic Father’s behavior and that
Father could not parent the child by himself. On cross-
examination, Mother acknowledged Father had not been arrested
in the last ten years, had never been Baker Acted, reported for
domestic violence nor reported to children and family services.
Father testified he had no history of psychological problems
and denied lashing out in fits of rage or yelling at the child. He
described his historical role as the primary caregiver in the home
while Mother went back to school and worked. Father denied any
need for supervised visitation and clarified he sought sole custody
of the child.
At hearing, the trial court determined that Mother’s motion
constituted a request for a psychological examination under rule
12.360, rather than a request for social investigation under section
61.20, Florida Statutes. Regardless, on May 4, 2017, the trial court
entered an “Order On Motion For Social Investigation Of Father,”
but within the pleading granted a compulsory evaluation pursuant
to rule 12.360. Mother was to select a psychologist to perform the
evaluation and pay the initial cost. The court orally detailed the
purpose of the evaluation was to “namely address whether or not
[Father] has an anger problem and whether or not that affects his
ability to parent,” but this was not included in the order. Until the
evaluation was completed, the court ordered temporary majority
timesharing for Mother and unsupervised, overnight timesharing
every other weekend with Father. The order simply noted Mother
“met her burden of an initial showing that the Father’s mental
health [wa]s in controversy and that good cause exist[ed],” but no
factual findings were included. It further allowed each party to
submit information for the psychologist to consider, with the
exception of one-party consent audio recordings. In response,
Father filed a petition for writ of certiorari seeking to quash the
order compelling his psychological evaluation.
II. Analysis
Certiorari first requires material injury not remediable on
plenary appeal; this is a threshold, jurisdictional requirement. See
State, Dep’t of Revenue v. Hartsell, 189 So. 3d 363, 364-65 (Fla. 1st
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DCA 2016). Ordering a compulsory medical examination meets
the jurisdictional threshold. J.B. v. M.M., 92 So. 3d 888, 889 (Fla.
4th DCA 2012). Next, and at issue here, the petitioner must
demonstrate a departure from the essential requirements of law
by showing the order violates clearly established principles of law
resulting in a miscarriage of justice. Hartsell, 189 So. 3d at 365.
We find Father has met his burden.
Courts have two available avenues to compel the
psychological evaluation of a party in a family law case: 1) as part
of a social investigation pursuant to section 61.20, Florida
Statutes; and 2) pursuant to Florida Rule of Civil Procedure 1.360
and its companion Family Law Rule of Procedure 12.360. See
Russenberger v. Russenberger, 639 So. 2d 963, 965 (Fla. 1994).
However, “parties are entitled to know whether the court is
proceeding under the rule or the statute.” Id. at 965. Here, the
order references Mother’s motion for “social investigation,” but
ultimately grants the psychological evaluation under rule 12.360.
A. Rule 12.360 1
Pursuant to rule 12.360, a request for a psychological
examination must be related to “a matter in controversy,” and the
party must have “good cause for the examination.” Fla. Fam. L. R.
P. 12.360(a)(1),(2). The requesting party has the burden to satisfy
the “in controversy” and “good cause” prongs. Manubens v.
Manubens, 198 So. 3d 1072, 1074 (Fla. 5th DCA 2016); see also Fla.
Fam. L. R. P. 12.360(a)(1),(2). A court’s failure to make any
findings as to the requirements of rule 12.360 is a departure from
the essential requirements of law. See Russenberger v.
Russenberger, 623 So. 2d 1244, 1245-46 (Fla. 1st DCA 1993), aff’d
1 As of March 16, 2017, the Florida Supreme Court adopted a
more comprehensive rule related to examinations in the family law
context. See In re Amendments to Florida Family Law Rules of
Procedure, 214 So. 3d 400, 407 (Fla. 2017). Formerly, rule 12.360
simply referred to the rule of civil procedure, 1.360, that permitted
examination of parties. Id. at 446. Presently, and at the time
Mother filed her request, rule 12.360 provides an updated
framework specifically applicable to family law.
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639 So. 2d 963 (Fla. 1994); Manubens, 198 So. 3d at 1074-75; cf.
Wade v. Wade, 124 So. 3d 369, 375 (Fla. 3d DCA 2013) (explaining
the complete failure to address a requirement “alone may be
sufficient to overturn the trial court’s order”).
“In Controversy”
Seeking custody, in and of itself, does not place the parent’s
mental condition “in controversy,” Wade, 124 So. 3d at 375, nor is
“mere relevance to the case” sufficient. Russenberger, 623 So. 2d at
1245. The mental condition alleged “must directly involve a
material element of the cause of action.” Williams v. Williams, 550
So. 2d 166, 167 (Fla. 2d DCA 1989). There must be “verified
allegations that the parent in question is having mental problems
that could substantially impact his or her ability to properly raise
children.” Wade, 124 So. 3d at 375; see also Asteberg v. Russell, 144
So. 3d 606, 608 (Fla. 2d DCA 2014) (a belief the primary residential
parent is not supporting and promoting the child’s relationship
with the other parent did not put mental health in controversy);
Williams, 550 So. 2d at 167 (claims a father failed to use a car seat
for the child, that the child wet his pants after a visit with the
father, and that the father used bad language in front of the child
and was unstable were insufficient to put the father’s mental
health in controversy). Mental health has been declared “in
controversy” where a father seeking parental responsibility made
comments to a minor child that he was contemplating suicide.
Barry v. Barry, 159 So. 3d 306, 307-08 (Fla. 5th DCA 2015). Baker
Act proceedings or a diagnosed schizoaffective disorder can place
mental health in controversy. Bailey v. Bailey, 176 So. 3d 344, 346-
47 (Fla. 4th DCA 2015); J.B., 92 So. 3d at 890.
Mother fails to cite cases analogous to the instant appeal.
Instead, she relies heavily on the fact the parties disagreed over
the parenting plan and Father seeking sole custody, which alone
is insufficient to trigger a rule 12.360 examination. Wade, 124 So.
3d at 375. The focus of rule 12.360 is not on good or bad parenting,
but on something larger, some greater indicator of deeper mental
health concerns. With no actual violence to a person or threat of
violence to a person, Father’s alleged actions could be irresponsible
and rash reactions to frustration with his current circumstances.
However, those actions, while not preferable, may not rise to the
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level of significant mental health concerns warranting an intrusive
evaluation. The burden of proof is heightened when the party
subject to the request for an examination has not voluntarily
placed that issue in controversy. Wade, 124 So.3d at 373. Just a
month prior to requesting the mental examination, Mother filed
her verified answer to an interrogatory in which she failed to
identify that Father’s mental health was at issue. 2 Moreover, the
trial court granted Father unsupervised timesharing, which would
not have occurred if a true concern about Father’s mental condition
existed.
“Good Cause”
Even if the prong of “in controversy” is satisfied, the
requesting party must also show “good cause” for a psychological
examination. “Good cause” requires that a party’s mental condition
“[can] not adequately be evidenced without the assistance of expert
medical testimony.” Fruh v. Dep’t of Health & Rehab. Servs., 430
So. 2d 581, 584 (Fla. 5th DCA 1983), cited in In the Interest of
S.M.B., 597 So. 2d 848, 852 (Fla. 1st DCA 1992). Good cause
“should be based on evidence that the parent has been unable to
meet the needs of the children.” Nobbe v. Nobbe, 627 So. 2d 59, 60
(Fla. 2d DCA 1993). The requesting party must show that the
alleged mental illness places the child “at risk of abuse,
abandonment or neglect.” J.B., 92 So. 3d at 890; see also
Schottenstein v. Schottenstein, 384 So. 2d 933, 936 (Fla. 3d DCA
1980) (finding that children being “sometimes upset when they
returned from a visitation with their father” and father’s “desire to
give his children a sense of value about money” were insufficient
to show good cause for psychological evaluation). In addition, it
belies good cause to believe a party’s mental status would
2 Although family law rule 12.360 and rule 1.360 are similar,
their application is dependent on claims raised or abandoned. For
example, a Plaintiff may raise mental anguish as a basis for
damages in a cause of action in tort. In that context and under rule
1.360, the mental condition would be a matter “in controversy”
unless withdrawn. See Maddox v. Bullard, 141 So. 3d 1264 (Fla.
5th DCA 2014); Olges v. Dougherty, 856 So. 2d 6, 12 (Fla. 1st DCA
2003).
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jeopardize a child’s well-being, where a court orders a
psychological evaluation and also awards continued timesharing,
unsupervised and overnight, with that party. See Wade, 124 So. 3d
at 376-77.
Here, the evidence before the trial court failed to show “good
cause” that Father could not meet the needs of the child or that his
mental instability, if shown, would have an effect on the child.
Because the order under review is void of any factual findings and
states only, “[t]he Mother has made met [sic] her burden of an
initial showing that the Father’s mental health is in controversy
and that good cause exists for the mental health evaluation,” we
have no insight into factors relied upon. Further, the trial court
ordered continued unsupervised visitation with Father over
weekends. Thus, the court must not have believed his mental
status would harm the child. Additionally, Mother stated she and
her elder daughter were fearful of Father, but confirmed he did not
threaten her or the child and was not violent with them. Father’s
cursing and outbursts are certainly not advisable, but this
behavior does not establish that Father is unable to meet the needs
of the child or places the child at risk.
A forced psychological examination has serious privacy
implications; people have the right to be free from compulsory
examination absent circumstances meeting the requirements. In
the Interest of T.M.W., 553 So. 2d 260, 263 (Fla. 1st DCA 1989)
(quoting Schottenstein, 384 So. 2d 933). The Florida Supreme
Court has cautioned against the use of mental health evaluations
as vindictive tools in family law cases. See Russenberger, 639 So.
2d at 966 (“A parent’s request for a psychological evaluation may
well be an expression of that parent’s vindictiveness and could
have the effect of making the child a victim.”).
In sum, the use of compelled psychological examinations must
be carefully scrutinized and courts have historically required a
showing of significant mental health issues directly impacting a
parent’s ability to raise their child. Here, Father’s actions may well
be ill-advised, but they fall short of showing a significant mental
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health issue for which the court may compel a psychological
examination under rule 12.360. 3
B. Scope of the Examination
Finally, even if Mother met her burden of proving “in
controversy” and “good cause” under rule 12.360, the order
remains deficient as it fails to provide sufficient parameters
regarding the examination. In orders compelling examinations,
the trial court must set forth “the time, place, manner, conditions,
and scope of an examination and the person or persons by whom it
is to be made.” Fla. Fam. L. R. P. 12.360(a)(1)(b); Manubens, 198
So. 3d at 1075.
Open-ended orders that do not provide specific directives
regarding the psychological evaluation depart from the essential
requirements of law. See id. at 674-75 (an order that stated the
“evaluation should include determining if the Wife is capable of
having [a] successful and positive homeschooling environment and
further, if she is capable of performing the duties effectively to
continue homeschooling the children” was not specific and detailed
enough); Barry, 159 So. 3d at 308 (an order stating to evaluate “the
safety of the children while in Petitioner’s custody,” was not
sufficient; it did not “identify the length of the examination, the
type of testing, or whether the testing is limited to ‘methods
3 Mother’s argument that the evaluation could have been
ordered as a social evaluation under section 61.20, Florida
Statutes, is without merit. The trial court rejected Mother’s
request for a social investigation. Mother did not appeal from the
rejection of her alternative statutory claim. Accordingly, this
argument was not preserved. We also disagree with Mother’s
argument that section 61.13, Florida Statutes, provides a third,
independent avenue to order a psychological evaluation. The
statute does not provide the court with the power to order an
examination; rather, it merely sets forth an element the court must
consider when determining parental responsibility and time
sharing. See § 61.13(3), Fla. Stat.; Gordon v. Smith, 615 So. 2d 843,
845 (Fla. 4th DCA 1993) (“If section 61.13 supplies the relevancy,
then section 61.20, Florida Statutes (1991), furnishes the specific
tool.”).
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routine to the profession’”). Courts have even tied particularity to
the “good cause” requirement, explaining that without a proper
scope of the requested examination, the court is not able to
determine if there is good cause for that particular examination.
Id. The failure of an order to specify the manner, conditions, and
scope of an examination creates a “carte blanche” scenario for the
psychologist to perform any type of psychological inquiry, testing,
and analysis. Maddox v. Bullard, 141 So. 3d 1264, 1266 (Fla. 5th
DCA 2014). Here, the order is devoid of any limits on or
instructions for the evaluation. Thus, it departs from the essential
requirements of law by failing to meet the requirements of rule
12.360.
III. Conclusion
The order compelling Father to undergo a psychological
evaluation pursuant to rule 12.360 is a departure from the
essential requirements of law. The trial court failed to provide any
factual findings as to the requirements of “in controversy” and a
showing of “good cause” for the evaluation. The order is also
facially inconsistent in permitting continued unsupervised,
overnight timesharing with Father while finding “good cause” to
compel him to undergo a mental health examination. Lastly, the
order is deficient as the trial court failed to address the required
elements of manner, conditions, and scope of the examination.
Accordingly, we grant Father’s petition and quash the trial
court’s order compelling his psychological evaluation.
Petition GRANTED.
LEWIS, J., concurs; KELSEY, J., dissents with opinion.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
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KELSEY, J., dissents.
I respectfully dissent, in part. I agree with the majority that
we have jurisdiction and that these parties and the lower tribunal
need to get the procedures right, including specifying the scope of
psychological evaluation of the Father. Further, the analysis
should focus on present ability to parent, and thus on remand the
issues should be evaluated in light of current information. Zarzaur
v. Zarzaur, 213 So. 3d 1115, 1118-19 (Fla. 1st DCA 2017). As to the
core substantive question of whether the Father’s behavior
justified intrusion into his mental health, however, the record
reflects competent, substantial evidence sufficient to support the
trial court’s order requiring the Father to undergo psychological
testing.
The Mother here alleged as follows:
The Father has engaged in the following behaviors in
presence of the minor child:
A. [The Father] is unable to control his temper which
manifests as explosive fits of rage;
B. [The Father] engages in screaming, threats to damage
the parties’ personal property with a golf club and other
violent behaviors in the presence of the child;
C. [The Father’s] fits of rage are unpredictable and there
is no known trigger causing the outbursts to be
spontaneous and frightening for [the Mother] and the
child.
Under oath, the Mother testified as follows:
Mr. Oldham frequently and bi-frequently –
daily and multiple times daily would go into fits
of rage, anger, explosive yelling, cussing,
terrible vulgar language. My daughter, who is
the older child, is now in counseling because of
emotional distress that he caused her. . . . She
experienced and witnessed – we both did – and
10
so did my son, many, many multiple – every day
-- . . . rage, screaming. . . . I believe – the 20th of
January, I think, was the one that was in the
garage. . . . This is about a week before I left.
. . . He was – his bike that he hooked up to his
TV wasn’t picking up that TV or that Apple TV,
and he was screaming and losing it and
throwing things in the garage. My daughter was
terrified. She came to me and begged me why.
Why is he angry again? . . . I was scared. . . . My
son was in the room and present and heard it.
...
He was throwing items around in the
garage. He was screaming obscenities. . . . Fuck
this thing. You can’t fucking work here. You
can’t get this out here? You fucking dick licker.
You pickle dick. You fuck – you fuck – mother
fucker. This is what he was screaming and
screamed frequently. . . . [Q Does that happen at
least once a day?] Absolutely. [Multiple times a
day?] Yes. . . . I do not want my son learning to
speak this as his first words. I do not want my
son to learn to act like this and to be rageful and
angry. I was fearful myself. . . . I was fearful,
and that’s why I left the way that I did because
of his rage that he exhibited daily. I was afraid
if I told him I was leaving, that it would go from
the verbal and emotional abuse stage to the
physical, and I was afraid. . . . At that time, he
was throwing tools and things that were in the
garage. And, yes, he was throwing items around
in the garage. . . . Tools from his toolbox and
things that were laying on top of his toolbox. . . .
Like, a wrench. Like, you know, the remotes to
the TV thing. He was throwing things from – the
thing from his bike around. I mean, these were
– you know, this is what was common for him.
...
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[Q Can you recall specifically another
incident where he exhibited such behavior?]
Yes. . . . His computer was not loading properly,
and he would enter into fits of rage directly in
front of my son. He was in the room. He was
wielding a golf club around saying, it’s taking
everything I can to fucking not smash this
fucking computer with this fucking golf club.
This fucking piece of shit. Give me the fucking
virus. I just – fuck it all. Fuck it all. I can’t get
the fucking web page. Over and over constantly
for, you know – this went on for probably thirty
or forty-five minutes in front of my son while my
son was having breakfast.
The mother also testified to similar outbursts arising out of
computer issues; another during the Trump-Clinton debate; and
others triggered by a dog barking, a friend of the Mother’s coming
to the door, and her daughter’s wanting to play in the living room-
-all occurring in the presence of the minor children: “[A]nything
and everything is a trigger for him.” The Mother testified that as
the Father’s fits of rage got worse, she changed her work schedule
and made child-care arrangements so that her daughter would not
have to be alone with the Father, and ultimately took the children
and herself out of the home because of the Father’s conduct.
The Father at first generally denied engaging in fits of rage,
but did admit to what he called incidents of “frustration with his
computer.” He distinguished his behavior as not being “directed at”
the children, but did not deny that they witnessed it.
The trial judge found this evidence sufficient to justify a
psychological evaluation of the Father, and did not depart from the
essential requirements of law or create a miscarriage of justice in
so finding. The Father’s behavior was significant and extremely
troubling. The Father’s behavior would be sufficient to support a
domestic violence injunction. See Fla. Fam. L. R. P. 12.980(a)
(listing destruction of “personal property, including, but not
limited to, telephones or other communication equipment,
clothing, or other items belonging to the [victim]” as a general
category of behavior qualifying for an injunction). Court-Appointed
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Parenting Coordinators are required to monitor cases for domestic
violence incidents and “take appropriate action to address any
safety concerns.” Fla. R. Qual. & Ct.-App. Parenting Coords.
15.180(a). The Florida Bar has suggested attorneys ask clients in
domestic abuse situations “Has your partner ever destroyed things
that you care about, broken furniture, thrown things, or hurt your
pets?” The Florida Bar’s Fastrain, Injunctions for Protection
Against Domestic Violence (2006 ed.). A legal basis for a domestic
violence injunction is a very strong indicator of a serious mental
health issue warranting professional evaluation in the parenting
context. See also, e.g., J.Y. v. Dep’t of Child. & Fams., 10 So. 3d
168, 170 (Fla. 5th DCA 2009) (finding evidence of domestic violence
and ongoing angry outbursts in presence of child, together with
other evidence, supported termination of parental rights); J.P. v.
Dep’t of Child. & Fams., 855 So. 2d 175, 176-77 (Fla. 5th DCA
2003) (On Motion for Rehearing) (holding trial court properly
ordered father to submit to psychological evaluation due to prior
incidents of domestic violence and a criminal history of violence).
The Father’s mental condition was in controversy with respect
to establishing a timesharing schedule for the minor child. The
Mother’s sworn testimony, which the Father in very substantial
part did not dispute, established good cause for the examination
because it demonstrated mental issues “that could substantially
impact [the Father’s] ability to properly raise children.” See Wade
v. Wade, 124 So. 3d 369, 375 (Fla. 3d DCA 2013). The evidence thus
supported the trial judge’s decision to require a psychological
examination of the Father. See Fla. Fam. L. R. P. 12.360.
_____________________________
Brian P. North of Kenny Leigh & Associates, Fort Walton Beach,
for Petitioner.
Jill W. Warren of the Law Office of Jill W. Warren, PLLC,
Pensacola, for Respondent.
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