Joan Loreva Kreth v. Timothy Kerwin Kreth

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
JOAN LOREVA KRETH v. TIMOTHY KERWIN KRETH
A Rule 10 Appeal from the Circuit Court for Shelby County
No. CT-006726-00 The Honorable D'Army Bailey, Judge
No. W2002-00983-COA-R10-CV - Filed May 20, 2002
This case is before the Court on application for extraordinary appeal pursuant to Tenn. R. App. P.
10. The applicant-father filed a petition to modify the final decree of divorce concerning his child
support obligation, because the minor child was currently living with him. Mother filed an answer
stating that the child should not be living with father and that father was violating the provisions of
the permanent parenting plan entered at the time of the divorce. Subsequently, Mother filed, among
other things, a "Motion for Psychological Evaluation of the Parties and Their Child." The trial court
granted the motion and ordered such psychological evaluations as requested. Father has filed an
application for a Rule 10 appeal. We grant the application and reverse the order of the trial court and
remand the case for further proceedings.
Tenn. R. App. P. 10; Extraordinary Appeal; Judgment of the Circuit Court Reversed and
Remanded
W. FRANK CRAWFORD , P.J., W.S., delivered the opinion and order of the court, in which DAVID R.
FARMER , J. joined.
David E. Caywood, Memphis, For Appellant, Timothy Kerwin Kreth
Amy J. Amundsen, Memphis, For Appellee, Joan Loreva Kreth
OPINION
Plaintiff, Joan Loreva Kreth (Mother), and Defendant, Timothy Kerwin Kreth (Father), were
divorced by final decree entered on June 12, 2001, which included a Permanent Parenting Plan
providing for the minor child to reside one week with Mother and one week with Father. The decree
also provided for Father to pay $3,500.00 per month child support for said child. On December 3,
2001, Father filed a petition to modify the Final Decree of Divorce, seeking primarily to be relieved
of the child support obligation because the minor child was living with him. Father's petition states
that following the divorce, both parties reconciled to the extent that Mother moved into Father's
residence and began cohabitating with him in early September 2001. The parties continued this
arrangement and began plans for a remarriage. The petition further avers that in October, the parties
took a family vacation along with the minor child and that upon returning from the vacation, Mother
moved out of Father's resident and on November 3, 2001, married a person named Jason Cromwell,
who she allegedly had a relationship with prior to the divorce. The petition seeks, among other
things, that Father be relieved of the obligation to pay cash child support and that Mother be required
to pay child support to Father in addition to insurance premiums and other obligations which Father
is currently responsible for.
Mother filed an answer to the petition virtually admitting the allegations thereof with
explanations for the reasons therefor and denies that Father should be the primary residential parent
and that he is obstructing the parenting time. The answer further avers that it is in the best interest
of the child to live with Mother pursuant to the Permanent Parenting Plan and "that parents and child
should immediately enroll in family counseling."
Subsequently, Mother filed, among other things, a "Motion for Counseling and Motion to
Suspend Proceedings Pending Family Therapy and/or in the Alternative, Motion for Mediation
Before Any Hearings." The motion alleges that Father has not followed the Permanent Parenting
Plan, has not allowed or encouraged the minor to be with his mother, and that due to the level of
emotions involved the mother, father, and son should be required to participate in family therapy.
The motion also seeks suspension of the proceedings for three months to allow time for participation
in the therapy. In support of the answer, Mother filed an affidavit alleging various wrongful acts on
the part of Father. Father filed a response to Mother's motion setting out his version of the facts as
they related to the attempted rehabilitation and the lack of success, and further responded to Mother's
affidavit by denying the acts alleged against him and alleging various wrongful acts on the part of
Mother. Although the allegations made by both parties could be material when this matter is heard
in the trial court, they are not material for the issue before this Court concerning the order for
psychological evaluation, and therefore we see no need to detail them here.
The trial court granted Mother's motion, stating in pertinent part:
1. The Motion for Psychological Evaluation is well taken as the court
believes it will benefit from hearing from a well respected
psychologist as to what parenting time and plan is in the son's best
interest.
2. The court hereby orders that the parties and son be evaluated by
Dr. Ciocca. The parties shall cooperate and sign all necessary
releases and after his report is complete, the court will set this cause
for an expedited hearing on the Petition to Modify Permanent
Parenting Plan.
The trial court, by its order, is seeking "what parenting time and plan is in the son's best
interest."
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Tenn. R. Civ. P. 35.01 provides:
Order for Examination. When the mental or physical condition
(including the blood group) of a party, or of a person in the custody
or under the legal control of a party, is in controversy, the court in
which the action is pending may order the party to submit to a
physical or mental examination by a suitably licensed or certified
examiner or to produce for examination the persons in his custody or
legal control. The order may be made only on motion for good cause
shown and upon notice to the person to be examined and to all parties
and shall specify the time, place, manner, conditions, and scope of the
examination and the person or persons by whom it is to be made.
In Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 154376 (Dec. 5, 2001), this
Court in considering the use of psychological evaluation in domestic cases stated:
Prior to the adoption of the Tennessee Rules of Civil
Procedure, the Tennessee Supreme Court recognized the existence of
a common-law power of courts to compel litigants to submit to
physical examinations. Williams v. Chattanooga Iron Works, 131
Tenn. 683, 691, 176 S.W. 1031, 1033-34 (1915). However, the Court
recognized that the courts should exercise this power “with great
restraint and with careful attention to the rights of the plaintiff.”
Accordingly, the Court held that plaintiffs should not be required to
undergo a physical examination unless the party seeking the
examination has demonstrated “that it is necessary in order that
justice may be done.” Williams v. Chattanooga Iron Works, 131
Tenn. at 694-95, 176 S.W. at 1034; see also Union Pacific Ry. v.
Botsford, 141 U.S. 250, 259, 11 S. Ct. 1000, 1004 (1891) (Brewer, J.,
dissenting) (stating that truth and justice are more sacred than any
personal consideration).
With the advent in 1971 of the Tennessee Rules of Civil
Procedure, Tennessee continued the common-law rule in Tenn. R.
Civ. P. 35 which, then and now, is patterned after Fed. R. Civ. P. 35.1
Tenn. R. Civ. P. 35.01 contains no limitation on the actions to which
it applies; therefore it is available in any pending civil proceeding to
which the Tennessee Rules of Civil Procedure apply. Few precedents
1
Decisions of the federal courts construing analogous federal rules of procedure can provide helpful guidance
in interpreting our ow n rules. Frazier v. East Tenn. Baptist Hosp., 55 S .W.3d 9 25, 9 28 (Ten n. 20 01); Byrd v. H all, 847
S.W .2d 2 08, 2 11 n . 2 (Tenn . 199 3); Pacific Ea stern C orp. v. Gu lf Life Holding Co., 902 S.W.2d 946, 952 n.7 (Tenn.
Ct. App. 199 5).
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construing Tenn. R. Civ. P. 35 exist because physical and mental
examinations of parties or persons in the custody of a party are
usually done by agreement without the intervention of the courts. 4
Nancy F. MacLean, Tennessee Practice § 35:2 (3d ed. 2000). In fact,
commentators generally attribute the ease of these agreements to the
existence of Rule 35. 8A Charles A. Wright, et al., Federal Practice
and Procedure § 2234, at 474 (2d ed. 1994) (“Federal Practice and
Procedure”).
Any type of physical or mental examination entails an
invasion of privacy. Lombardo v. Holdridge, 491 A.2d 1125, 1126
(Conn. Super. Ct. 1985); Russenberger v. Russenberger, 623 So. 2d
1244, 1245 (Fla. Dist. Ct. App. 1993); Uhl v. C.H. Shoemaker & Son,
Inc., 637 A.2d 1358, 1362-63 (Pa. Super. Ct. 1994). Accordingly,
rules like Tenn. R. Civ. P. 35 balance the interests of personal privacy
with the interest of truth and justice. Lowe v. Philadelphia
Newspapers, Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983); Acocella v.
Montauk Oil Transp. Corp., 614 F. Supp. 1437, 1439 (S.D.N.Y.
1985); Avila v. Superior Court in and for County of Maricopa, 816
P.2d 946, 948-49 (Ariz. Ct. App. 1991).
To invoke Tenn. R. Civ. P. 35.01 successfully, a moving party
must establish two things. First, in the language of the rule, the
moving party must establish that the mental or physical condition of
a party or a person in the custody of a party is “in controversy.”
Second, the moving party must establish that “good cause” exists for
the physical or mental examination. Rather than being mere
formalities, the “in controversy” and “good cause” requirements
distinguish Tenn. R. Civ. P. 35 from the other discovery rules. No
other rule governing pre-trial discovery contains these requirements.
In light of these two requirements, a party seeking a Tenn. R.
Civ. P. 35 order must establish more than that the physical or mental
examination might lead to relevant information. Guilford Nat’l Bank
v. Southern Ry., 297 F.2d 921, 924 (4th Cir. 1962). It must also
establish need. 4A James W. Moore, et. al., Moore’s Federal
Practice and Procedure ¶ 35.03[5] (2d ed. 1996). Explaining the
significance of the “in controversy” and “good cause” requirements,
the United States Supreme Court has noted:
They are not met by mere conclusory allegations of
the pleadings – nor by mere relevance to the case –
but require an affirmative showing by the movant that
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each condition as to which the examination is sought
is really and genuinely in controversy and that good
cause exists for ordering each particular examination.
Obviously, what may be good cause for one type of
examination may not be so for another. The ability of
the movant to obtain the desired information by other
means is also relevant.
Schlagenhauf v. Holder, 379 U.S. 104, 118, 85 S. Ct. 234, 242-43
(1964).
We first note that as to placing the physical or mental condition of the parties in controversy,
there is nothing in the record to indicate that there is any controversy concerning the mental
condition of either the mother, father, or the minor child.
It also appears that there is nothing in the record to satisfy the good cause requirement of
Rule 35.01 which places the burden on the mother that the examination is needed. There is no
indication that any other discovery techniques have been utilized by the parties.
Under these circumstances and at this stage of the proceedings, we find that the trial court's
order for psychological evaluation at this time is premature, and Mother's motion should not have
been granted.
Accordingly, we grant the application for extraordinary appeal pursuant to Tenn. R. App. P.
10 and reverse the order of the trial court for psychological evaluation of the parties. The case is
remanded to the trial court for such further proceedings as may be necessary to resolve the issues
between the parties. Costs of this appeal are assessed against the appellee, Joan Loreva Kreth.
__________________________________________
W. FRANK CRAWFORD, PRESIDING JUDGE, W.S.
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