Philip P. Oldham v. Hillary E. Greene

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

2

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

3

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.

4

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

5

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).

6

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

7

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.”).

8

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.

_____________________________

9

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.

...

11

[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

12

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.

13