Bishop v. Goins

CHEZEM, Judge.

CASE SUMMARY

Appellant/petitioner, Deborah (Goins) Bishop, appeals from the denial of her petition to modify the custody order of her two children. We vacate and remand with instructions.

ISSUES

Deborah presents two issues for review, however, because we vacate and remand on the first issue, we need not address the second issue. We restate the first issue as follows:

Are the records concerning the marital counseling of the custodial parent and his spouse subject to discovery?

FACTS AND PROCEDURAL HISTORY

Deborah Bishop and Allan L. Goins, Jr., were divorced on October 26, 1983. At that time, custody of their two minor children, M.G. and A.G., was awarded to Deborah. On March 12, 1985, Deborah and Allan entered into an agreed modification granting custody of the children to Allan. On August 17, 1985, Allan married Diana Goins. On February 1, 1986, Deborah married Ed Bishop, which marriage was later dissolved on December 6, 1989.

On June 23, 1989, Deborah petitioned the trial court for a change of custody, alleging that there had been a change of circumstances so substantial and continuing as to make the existing custody order unreasonable. During pretrial discovery, Deborah deposed Sandy Zimmerman, who had been counseling M.G. and A.G. since 1987. During that deposition, it was discovered that Zimmerman had also conducted marital counseling between Allan and Diana. Thereafter, Deborah filed a motion for production of Zimmerman's records relating to the marital counseling. Diana refused disclosure, arguing that the records between her, a non-party, and Zimmerman were protected by the physician-patient privilege. The trial court conducted a hearing, and denied Deborah's motion to produce. Evidence was then heard on the merits of Deborah's custody claim. On June 15, 1990, the trial court concluded that Deborah had not shown a change in cireum-stances so substantial and continuing as to make the existing custody order unreasonable, and thus denied her petition.

DISCUSSION AND DECISION

Deborah contends that the marital counseling records of Allan and Diana were subject to discovery.¹ A trial court exercises judicial discretion in ruling on discovery issues, and we will reverse on appeal only for an abuse of that discretion. THQ Venture v. SW, Inc. (1988), Ind.App., 444 N.E.2d 335. To determine whether the trial court abused its discretion, we look to the provisions of Ind. Trial Rule 26(B):

Unless otherwise limited by order of the court in accordance with these rules, the scope of discovery is as follows: (1) Im general. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject-matter involved in the pending action, ...

To obtain discovery here, the trial court must first determine whether the information sought is relevant² to the issue being tried. Newton v. Yates (1976), 170 Ind.App. 486, 353 N.E.2d 485, trans. de nied. If the information is not relevant, no further inquiry is necessary and the discovery is prohibited. However, if the information is relevant, the trial court must then determine whether the information is exempted from discovery by privilege or immunity. Id.

Deborah contends that the marital counseling records of Allan and Diana are relevant to the custody dispute. The record shows that Allan was unmarried when he received custody of M.G. and A.G.; his marriage to Diana occurred five months later. Since that time, Diana has been primarily responsible for the care of M.G. and A.G. in the Goins' home. As such, Diana's mental health was relevant to determine the best interests of the children.³

Deborah also contends that the information sought was not the subject of privilege or immunity. The Supreme Court recently addressed the applicability of the physician-patient privilege to non-physician counselors. Matter of C.P. (1990), Ind., 563 N.E.2d 1275. Because the privilege is intended to inspire full and complete disclosure to further successful treatment by the physician, the Court found that a counselor who aids a physician is covered by the privilege. Conversely, a counselor who acts independent of a physician is not covered by the privilege. Id.

Thus, the question is whether Zimmerman was acting independent of a physician when providing the marital counseling to Allan and Diana. The record shows that Zimmerman has a Master's degree in Counseling and is a certified mental health counselor. While her office is located in and affiliated with the practice of five pediatricians, there is no evidence that these physicians participated with the marital counseling of Allan and Diana. Thus, the evidence indicates that Zimmerman acted alone and independent of any physicians. Accordingly, the trial court erred in determining that the marital counseling records were protected by the physician-patient privilege. The records are discoverable.

We vacate the order of the trial court and remand with instructions to: 1) enter an order allowing discovery of the marital counseling records; and 2) conduct a new hearing to determine whether there has been a change of cireumstances so substantial and continuing as to make the existing custody order unreasonable.

STATON, J., concurring. MILLER, J., dissenting with opinion.

1 . Allan contends that the marital counseling records were not subject to discovery under IC 16-14-1.6-8(f) without the consent of the patient. However, because Zimmerman does not come within the definition of IC 16-14-1.6-1, that chapter is not applicable to anyone receiving her services. We note that IC 16-4-8-3.1, effective July 1, 1990, would prevent the discovery of the records in this case absent the consent of the patient or a court order, received after a hearing, showing good cause.

2 . Relevancy for purposes of discovery is not the same as relevancy at trial; a document is relevant to discovery if there is the possibility that the information sought may be relevant to the subject matter of the action. CIGNA-INA/Aetna v. Hagerman-Shambaugh (1985), Ind.App., 473 N.E.2d 1033.

3 . IC 31-1-11.5-21(a)(6) provides that "the mental health and physical health of all individuals involved" is a relevant factor for the trial court to consider in making a custody determination. While we do not attempt to delineate the scope of the phrase "all individuals involved," this clearly includes a step-parent who is primarily responsible for the custodial household.