On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County.
Approved for Publication February 6, 1996.
Before Judges Long and Brochin. The opinion of the court was delivered by Brochin, J.A.D.
The opinion of the court was delivered by: Brochin
The opinion of the court was delivered by BROCHIN, J.A.D.
Plaintiff John Kinsella and defendant Mary Kinsella are currently embroiled in a divorce action. The case has not yet been tried. The trial Judge has entered an interlocutory order that "plaintiff and defendant shall each sign authorizations enabling the other party's counsel to obtain all their psychiatric, psychological and other therapists' records" and that "the records may be reviewed by the parties with their attorneys, but neither the records nor copies of the records shall be released to the parties . . . ."
We granted Mr. Kinsella's motion for leave to appeal from that order. Ms. Kinsella has not moved for leave to appeal. The provision of the order requiring her to turn over her "psychiatric, psychological, and other therapists' records" is not before us for review.
The Kinsellas were married in May 1977. Mr. Kinsella filed his complaint for divorce in January 1992. They have two minor children, John Jr., born on April 6, 1982, and Anastasia, born on September 14, 1985.
Mr. Kinsella's complaint charges his wife with extreme cruelty. He alleges that she would shout obscenities at him, "fly into a rage and begin yelling and screaming" at him. He also implies that she had an ongoing affair with another man.
Ms. Kinsella has counterclaimed for divorce on the ground of extreme cruelty. She also alleges a cause of action in tort and demands damages for physical and mental abuse by her husband. She charges him with committing continual physical assaults, including cutting her with razor blades, kicking and pummeling her in the head and in sensitive areas of her body, and breaking her bones. She also alleges that he has been physically and mentally cruel to their children. In the damage counts of her counterclaim, Ms. Kinsella asserts that her husband's behavior has caused her "serious and permanent physical, emotional and psychological injury, extreme distress and embarrassment" and that she "has in the past, and will in the future, be required to expend considerable sums of money for the treatment of the psychological and emotional injuries inflicted by the plaintiff." Ms. Kinsella also alleges that her husband has taken advantage of her "cultural and religious values" and financial and emotional dependence on him, "and has intentionally and purposely over a long period of time inflicted physical and emotional trauma upon her."
The trial Judge's rationale for granting each of the parties access to the other's records is that
the release of the psychological records for both parties may be a consideration as to the question of the 'dangerousness' of this case and the unpredictability of future actions in any case. . . .
As previously mentioned, Ms. Kinsella does not challenge the trial court's order giving her husband access to her records. However, Mr. Kinsella opposes giving his wife access to his records. He argues that they are protected from her scrutiny by N.J.R.E. 505 and N.J.S.A. 45:14B-28, the psychologist-patient privilege. The rule and statute are identical. Each reads as follows:
The confidential relations and communications between and among a licensed practicing psychologist and individuals, couples, families or groups in the course of the practice of psychology are placed on the same basis as those provided between attorney and client, and nothing in this act shall be construed to require any such privileged communications to be disclosed by any such person.
There is no privilege under this section for any communication: (a) upon an issue of the client's condition in an action to commit the client or otherwise place the client under the control of another or others because of alleged mental incompetence, or in an action in which the client seeks to establish his competence or in an action to recover damages on account of conduct of the client which constitutes a crime; or (b) upon an issue as to the validity of a document as a ...