Zarzaur v. Zarzaur, Jr. (First DCA, March 27, 2017

The trial court permitted the husband to obtain all of the wife’s mental health and other medical records.  The First District granted certiorari review and quashed the bulk of the order.

Initially, the District Court observed that mental health records are typically protected by the psychotherapist-patient privilege.  Thus, the wife’s records would be private unless the privilege was waived or inapplicable.  The husband made several arguments in favor of this conclusion, each of which was rejected.  First, the District Court held that the wife had not inadvertently waived her privilege.  The Court acknowledged that where a “calamitous event” occurs during a custody case, a trial court may find an implicit waiver of the statutory privilege.  However, in the instant case there was no evidence that such an event had occurred.  The District Court noted that the trial court could reconsider this conclusion if the husband was able to put on evidence of such a calamitous event at a future evidentiary hearing.  Second, the District Court held that the wife had not intentionally waived her privilege by agreeing to submit to a psychological evaluation under section 61.20.  Although the parties would have waived the privilege with respect to any records that they voluntarily presented to the evaluator because the parties agreed that such records would be discoverable, records beyond the scope of that agreement remained protected by the psychotherapist privilege.

Finally, the District Court concluded that the trial court had erred by ordering production that the wife produce her medical records directly to the husband without first requiring that they be subject to in-camera review.  The Court explained that a trial court must require in-camera review of such sensitive records to first determine whether they are relevant and non-privileged before permitting their release to the opposing party.  Failure to implement such safeguards is reversible error.

In a partial dissenting opinion, Judge Makar opined that the record contained ample evidence to support a conclusion that a “calamitous event” had occurred and that the wife had therefor waived her psychotherapist-patient privilege

Patel v. Shah (Third DCA, March 29, 2017)

The trial court denied the wife’s request for alimony at a final hearing because it found that the wife, pro se, had failed to file a counter-petition seeking such relief.  The Third District reversed, holding that the trial court should have treated the wife’s “Reply” to the husband’s divorce petition as an answer and counter-petition.  Because the wife’s Reply had, among other things, made allegations regarding the husband’s income and the wife’s need for support until remarriage, the trial court should have looked beyond the title of the pleading to the “content” and the “substance” of the document.

Rorrer v. Orban (Third DCA, March 29, 2017)

In a post-judgment case, the trial judge fashioned an attorney’s fees award to the former wife by adding the parties’ total attorney’s fees and pro-rating that total based on the parties’ respective incomes.  At the same time, the trial court noted that the former husband had engaged in improper litigation tactics and had caused the parties to incur more fees than would otherwise have been necessary.  The Third District reversed, holding that the trial court improperly created its own formula (which the trial court stated was meant to dissuade future litigation on both sides) instead of basing its award solely on the statutory factors, primarily need and ability to pay.  The District Court also observed that although the trial court found that the former husband was to blame for the high costs of the litigation, it did not appear to have based its award on this this finding.  As a result, the former wife was forced to bear at least some of the costs for the former husband’s behavior.  According, the District Court reversed the fees order for the trial court to reconsider it based on the appropriate statutory factors, including Rosen.

Although moot, the Court wrote additionally to explain that the trial court could rule on fees even with respect to prior orders that did not expressly reserve jurisdiction to adjudicate fees.  In so ruling, the Court observed that these orders were all part of a general post-judgment litigation and that no inequity would be done by allowing the trial court to fashion a fees award that included litigation related to these orders.