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Kinsella v. Kinsella

July 10, 1997

JOHN KINSELLA, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT,
v.
MARY KINSELLA, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.



On appeal from the Superior Court, Appellate Division, whose opinion is reported at 287 N.J. Super. 305 (1996).

The opinion of the Court was delivered by Stein, J. Chief Justice Poritz and Justices Handler, Pollock, O'hern, Garibaldi and Coleman join in Justice Stein's opinion.

The opinion of the court was delivered by: Stein

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

John Kinsella v. Mary Kinsella, 150 N.J. 276, 696 A.2d 556 (1996).

Argued December 2, 1996 -- Decided July 10, 1997

STEIN, J., writing for a unanimous Court.

In this appeal, the Court addresses whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.

John and Mary Kinsella were married in 1977 and had two children during the marriage. In January 1992, John filed for divorce on the ground of Mary's extreme cruelty. John sought dissolution of the marriage, custody of the children, and equitable distribution of the marital property. Mary filed an answer and counterclaim, denying extreme cruelty on her part. She alleged extreme cruelty by John, claiming that John had undergone a change of character because of alcohol and drug abuse. Mary also claimed that John had physically abused her and the children. Mary sought dissolution of the marriage, equitable distribution of the marital property, custody of the children, alimony and child support. Mary also sought compensatory and punitive damages for the injuries she sustained as set forth in her counterclaim.

During the proceedings, Mary retained physical custody of the children. In the fall of 1992, the court appointed a psychologist, Dr. Montgomery, to determine if John could have overnight visitation with the children. In her July 7, 1993, report recommending that John be permitted overnight visitation, Dr. Montgomery included summaries of her interviews with John, Mary and the children. Dr. Montgomery had also consulted with Madelyn S. Milchman, Ph.D., who briefly treated the Kinsella's as a couple beginning in 1988 and who continued to treat John on an individual basis. Dr. Montgomery had also reviewed a court-ordered addiction evaluation of John.

In January 1995, Mary filed an amended answer and counterclaim, wherein she alleged more detailed instances of physical abuse against her and the children. In her counterclaim, Mary sought compensatory and punitive damages, as well as costs and counsel fees, for intentional assault and battery, intentional infliction of emotional distress, and marital tort claims.

In a cross-motion filed in March 1995, John sought, among other things, an order compelling Mary to sign releases for her medical and psychological records. Although, the court granted that request, at a pre-trial hearing, Mary argued that the court should provide each party with access to all of the other party's psychological records, including the records of Dr. Milchman, John's treating psychologist. Mary sought to review those records because of their relevance to the custody issues and the tort claim based on the battered-women's syndrome. John objected to the release of those records, claiming that they were protected by the physician-patient privilege under New Jersey Rule of Evidence (N.J.R.E.) 505 because Dr. Montgomery's report provided sufficient information on his mental state for purposes of custody and visitation. John further argued that Mary's records were put "in issue" because of her tort claims but that his mental state was not similarly "in issue." The court ordered that each party release their respective psychological records to opposing counsel.

On leave to appeal granted, the Appellate Division concluded that there were less intrusive means available for Mary to prove her claims of spousal abuse and that N.J.R.E. 505 did not provide an exception to the privilege in these circumstances. However, the Appellate Division agreed with Mary that, by pleading extreme cruelty as a cause of action in divorce, John had put his own mental condition in issue and, therefore, waived the psychologist-patient privilege. The court limited access to only records contemporaneous with the period during which John alleges that Mary committed acts of extreme cruelty. The court required that the records first be reviewed by the trial Judge in camera for relevancy before release to Mary or her attorney.

The Supreme Court granted motions for leave to appeal filed by John and Mary. John appeals so much of the Appellate Division decision that holds that the psychologist-patient privilege is waived when a party sues for divorce based on extreme cruelty. Mary appeals so much of the decision that holds that psychological records cannot be obtained for use in determination of custody issues and also contests denial of access to such records for purposes of her marital tort claims.

HELD:

Mary Kinsella failed to make a prima facie case for piercing the psychologist-patient privilege sufficient to allow disclosure of John Kinsella's psychotherapy records either for purposes of proof of her marital tort claims or for defending the extreme cruelty claim. However, on the issue of custody, the trial court, on reconsideration, must balance the need for the records with the public policy underlying the privilege and determine whether, under the Kozlov test, the privilege should be pierced to compel disclosure of the records.

1. Privileges are construed narrowly in favor of admitting relevant evidence. The Legislature based the psychologist-patient privilege on the attorney-client privilege. Under the three-part test established in In re Kozlov, in order to pierce the attorney-client privilege: 1) there must be a legitimate need for the evidence; 2) the evidence must be relevant and material to the issue before the court; and 3) by a fair preponderance of the evidence, the party must show that the information cannot be secured through any less intrusive source. (pp. 14-22)

2. There is an implicit waiver of the attorney-client privilege where the plaintiff has placed "in issue" a communication that relates directly to the claim in controversy. In New Jersey, courts rely on the Kozlov three-part test to limit the waiver in scope to that which is necessary to serve the public interest according to the facts of the case. Where the party seeking disclosure makes a prima facie case for waiver, the court should review the evidence in camera before releasing it to ensure the privilege is pierced only to the extent necessary. New Jersey courts confronting the issue of the psychologist-patient privilege consistently apply these same principles developed in the context of the attorney-client privilege. (pp. 22-28)

3. The Court need not determine whether an exception exists to the psychologist-patient privilege for communications made to the therapist at a time when the therapist was jointly employed by both parties because the communications at issue are protected by the marriage and family therapist privilege, N.J.R.E. 510. Under that rule, one party may not force disclosure of communications made by another party at a time when both parties were engaged in joint therapy. (pp.28-30)

4. When no statutory or other traditional exceptions to the psychologist-patient privilege apply, the court should not order disclosure of therapy records, even for in camera review, without a prima facie showing that the psychologist-patient privilege should be pierced under Kozlov 's three-part test. Mary fails to satisfy the third-prong of the test because evidence for proving allegations of spousal abuse is available from other sources. Therefore, Mary has not made a prima facie case for piercing the privilege sufficient to allow disclosure for the marital tort claims. (pp. 30-33)

5. Based on the elements of proof required by the cause of action for extreme cruelty, and the function of that cause of action in New Jersey divorce law, specifically the subjective and liberal standard for proving extreme cruelty, piercing the psychologist-patient privilege should be permitted only rarely in order to enable a party to defend that cause of action. John's factual allegations have not created a need for the evidence at issue; the evidence sought is not relevant or material to any legal issue before the court; and less intrusive means are available for obtaining evidence to defend the extreme cruelty claim; therefore, Mary has not made a prima facie showing that the privilege should be pierced for the purpose of defending the divorce action. (pp. 33-45)

6. In custody disputes, the primary concern is the best interests of the child. In respect of therapy records, courts must strike a balance between the need to protect the well-being of children and the compelling public policy of facilitating the treatment of parents' psychological or emotional problems. Thus, the first source of information about the parents' mental health should be independent experts appointed by the court or hired by the parties for the purpose of litigation. Only when the court perceives, after consideration of all the evidence, that the information gained from independent analysis is inadequate, should the court consider piercing the psychologist-patient privilege to compel disclosure of prior treatment records to the court and the parties. Before releasing the records, the court should conduct an in camera review, releasing only relevant and material information. (pp. 45-63)

7. The trial court did not properly balance the need for John's therapy records with the public policy underlying the psychologist-patient privilege. On remand, the trial court should reconsider, in accordance with the principles outlined in this opinion, whether the privilege should be pierced to compel release of John's therapy records for the purpose of custody determination. Based on the important public policy behind the psychologist-patient privilege, only in the most compelling circumstances should courts permit that privilege to be pierced. (pp. 63-65)

Judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART and the matter is REMANDED to the Family Part for further proceedings consistent with this opinion.

CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, GARIBALDI and COLEMAN join in JUSTICE STEIN'S opinion.

The opinion of the Court was delivered by

STEIN, J.

This appeal presents the question whether the psychologist-patient privilege may be invoked by a patient to prevent discovery of psychotherapeutic treatment records in the context of three aspects of matrimonial litigation: a marital tort claim against the patient, an extreme cruelty claim for divorce by the patient, and a child custody dispute between the patient and his spouse.

I

Plaintiff John Kinsella and defendant Mary Kinsella married in May 1977 in New York City. The couple subsequently moved to Glen Ridge, New Jersey. Two children were born of the marriage: John, Jr. on April 6, 1982, and Anastasia on September 14, 1985.

In January 1992, plaintiff filed for divorce on the ground of his wife's extreme cruelty, dating from approximately 1986. Specifically, plaintiff alleged that defendant had been verbally abusive, that she would "fly into a rage for no reason," and that she had intentionally involved the children in the couple's arguments. Plaintiff also alleged that defendant had spent excessive time with a male friend and that she had devoted too much time to her interior design business. Further, plaintiff alleged that defendant had alienated family and friends by her "bizarre behavior." Plaintiff sought dissolution of the marriage, custody of the children, and equitable distribution of the marital property.

In March 1992, defendant filed an answer and counterclaim, denying extreme cruelty on her part and alleging extreme cruelty on the part of the plaintiff, commencing with the birth of the couple's son in 1982. Defendant alleged that plaintiff had undergone a change of character due to heavy use of alcohol and illegal drugs. She alleged a pattern of belittling and humiliating behavior by plaintiff towards her, both at home and in public. Defendant further alleged that plaintiff had verbally and physically abused her and the children on a number of occasions. One such episode allegedly had resulted in a miscarriage. On another occasion, allegedly resulting in defendant's hospitalization, she asserted that the couple's six-year-old son had intervened by hitting plaintiff with a chair, allowing defendant to flee and call the police. Defendant sought dissolution of the marriage, custody of the children, equitable distribution of the marital property, alimony and child support, as well as court costs and counsel fees. Defendant also sought compensatory and punitive damages for injuries set forth in the counterclaim.

The parties proceeded with discovery and with settlement negotiations. Defendant retained physical custody of the children. In the fall of 1992, the designated motion Judge appointed a psychologist, Sharon Ryan Montgomery, Psy.D., to assist in determining whether plaintiff should have overnight visitation with the children. Dr. Montgomery's report was completed on July 7, 1993. She is expected to testify at trial.

Before rendering her fourteen-page report, Dr. Montgomery had met four times with each parent individually, once with each child individually, and once with each parent together with the children. Her report included summaries of these interviews. Dr. Montgomery had also consulted with Madelyn S. Milchman, Ph.D., from whom the Kinsellas briefly had received therapy as a couple beginning in 1988 and from whom plaintiff continued to receive therapy on an individual basis. Dr. Montgomery did not include notes from that consultation in her report. In addition, Dr. Montgomery apparently had reviewed a court-ordered addiction evaluation of plaintiff. Dr. Montgomery had not consulted with defendant's therapist, with John Jr.'s therapist, or with the family therapist treating the children and defendant.

According to Dr. Montgomery's report, defendant reported to Dr. Montgomery that plaintiff had had a drinking problem and had been physically abusive to both her and the children. She stated that the children were very fearful of their father and did not want to visit with him overnight. Defendant wanted plaintiff to have only very limited visitation. She also stated that she did not want plaintiff to have input into decisions regarding the children's welfare because she did not think that he and she could agree.

Plaintiff, on the other hand, admitted to Dr. Montgomery that he had been volatile and abusive with his wife at times, but claimed that she exaggerated the behavior. Plaintiff also admitted use of cocaine until November 1991 and excessive use of alcohol, but stated that his alcohol use diminished after he had decided to leave the marriage and that he currently did not suffer from an alcohol problem. That Conclusion was confirmed to Dr. Montgomery by the addiction evaluation. Plaintiff denied physical abuse of his children, although he acknowledged that the children were somewhat frightened of him. He stated that he wanted regular, including overnight, visitation.

The children indicated to Dr. Montgomery that their father had hit them in the past and that they had witnessed their father being physically abusive to their mother. John Jr. stated that he wanted his father to refrain from drinking during visitation. He also was aware of his father's prior drug use. The psychologist's impression, however, was that the children were not as frightened of their father as their mother had described. She felt that some of John Jr.'s statements sounded rehearsed.

Dr. Montgomery recommended overnight visitation on alternate weekends and mid-week dinners for plaintiff with his children. She concluded that plaintiff did not appear to be a compulsive user of drugs or alcohol at that time. However, she recommended continued urine screening on a sporadic basis for the next year and that plaintiff refrain from drinking during visitation. Dr. Montgomery recommended continued psychotherapy for both plaintiff and defendant. Dr. Montgomery also recommended that the court appoint a mediator/monitor to work with the Kinsellas to develop a co-parenting plan, supervise visitation and address further issues as they arose.

In July 1994, the court appointed Jeffrey P. Weinstein, Esq., to "work out a custody and visitation agreement with the parties." On October 18, 1994, Mr. Weinstein submitted his report, stating that he was unable to work out a custody agreement but proffering recommendations to the court. He is also expected to testify at trial.

In his report, Mr. Weinstein stated that he had read a letter to the court from Dr. Montgomery dated June 22, 1994. In addition, he had read a July 15, 1994, report by James G. Garofallou, Ph.D., from whom John Jr. had been receiving therapy. Mr. Weinstein had met with the Kinsella family and with the parents' attorneys. He had also spoken on the telephone to Dr. Montgomery, Dr. Garofallou, Dr. Milchman and defendant's therapist, Dr. Oosting.

Mr. Weinstein reported that he believed that defendant was manipulating the children, especially John Jr., to give the impression that their father was more dangerous than he really was. Nevertheless, he reported that the children had indicated that their father hit them in the past and continued to yell at them, and that they knew about his drug use. Mr. Weinstein stated that the treating therapists for the parents had both been "real advocates for the positions of their clients," and that both had believed that their clients were good parents. Dr. Garofallou had stated that he thought John Jr. was truly afraid of his father, but that because John Jr. would not allow Dr. Garofallou to meet his father Dr. Garofallou had no independent opinion about plaintiff. Dr. Garofallou agreed with Mr. Weinstein that John Jr. might have been repeating to Mr. Weinstein what he thought his mother wanted him to say. Mr. Weinstein reported: "I believe that John Jr. may be truly fearful of his father, but I do not believe that his father is the cause of the fear."

Mr. Weinstein recommended joint legal custody, with defendant having primary physical custody and plaintiff having alternate weekend visitation, plus one week night per week, and three weeks of vacation per year, plus alternate holidays. Mr. Weinstein reported that defendant would not agree to joint legal custody. The parties apparently did not agree on a visitation schedule either. Defendant also wanted plaintiff to submit to drug and alcohol testing, to which plaintiff suggested he might agree.

On January 15, 1995, defendant, who had obtained new counsel, filed an amended answer and counterclaim. The first count of the counterclaim again sought divorce on the ground of extreme cruelty, but contained more detailed factual allegations than the original counterclaim. Defendant alleged that plaintiff's physical and sexual abuse of her had dated from the beginning of the marriage in 1977, and that plaintiff had had a severe drinking problem from that time. Defendant also alleged that plaintiff had begun using cocaine in 1985.

Defendant alleged many specific instances of physical abuse against her and her children. She alleged that plaintiff had once severely injured her arm by twisting it in an attempt to make her drop her baby. She alleged that even before their son was one year old, plaintiff had frequently struck him and that, throughout his residence in the home, plaintiff had continued to kick and punch the child. She alleged that plaintiff had once sat on the couple's five-year-old daughter to make her stop crying. Other instances of alleged abuse against defendant included striking, dragging, choking, kicking and cutting her, throwing objects at her, and attempting to run her over with a car. Defendant also alleged that plaintiff had tortured her with razor blades and a leather whip and that he had threatened both her and her son with knives and baseball bats. She alleged that plaintiff had refused to help her obtain critical medical assistance when she was suffering from a dangerous kidney infection related to her diabetic condition, and that he had attempted to force her to ingest overdoses of her medications. Defendant stated that she had lived in an attitude of constant fear and had contemplated suicide. Defendant alleged that plaintiff had threatened to kill her and had tried to convince her to kill herself.

Defendant claimed that she had been hospitalized in connection with some of those incidents, had required several surgeries, and continued to suffer medical consequences. She also claimed to have fled on one occasion to a Rhode Island hotel with her children. Defendant further alleged that plaintiff had been arrested in connection with incidents of abuse and had been the subject of a restraining order.

Defendant alleged that plaintiff's threats and abuse had continued after the separation. She alleged that, during visitation, plaintiff had once tied a rope around John Jr.'s neck and that Anastasia had returned from visitation with suspicious bruises. She also alleged that plaintiff had entered the marital home and broken the third floor windows. Additionally, defendant alleged that plaintiff had hired men to stalk and terrorize her. On the first count, defendant sought dissolution of the marriage, custody of the children, alimony, child support, equitable distribution of the marital property, and court costs and counsel fees. The other counts of the counterclaim sought compensatory and punitive damages, as well as costs and counsel fees, for intentional assault and battery, intentional infliction of emotional distress, and marital tort claims. Defendant also submitted jury demands on those counts.

The parties proceeded towards trial. In a cross-motion filed in March 1995, plaintiff sought, inter alia, an order compelling defendant to sign releases for her medical and psychological records. The court granted that aspect of the cross-motion, but ordered the parties to agree on a form of order. No agreement was reached before a subsequent pre-trial hearing on May 12, 1995. At that hearing, defendant contended that the order should provide for each party to have access to all of the other party's psychological records, including the records of plaintiff's treating psychologist, Dr. Milchman. Plaintiff objected to release of those records. Defendant argued that she sought the records on the issue of legal custody and because of "the issue . . . of anger and fault that is pervading this case." Defendant also stated that she disagreed with the Conclusions of the court-appointed psychologist, Dr. Montgomery. Plaintiff claimed that his psychological records were protected by the psychologist-patient privilege under Rule 505 of the Rules of Evidence. He also represented that he did not intend to call Dr. Milchman as a witness at trial.

The trial court concluded that its earlier decision had not addressed plaintiff's records and therefore issued an order for release of defendant's records only. That order has not been appealed. The court gave the parties additional time to brief the question whether plaintiff also should be required to release his psychological records.

In her letter brief, defendant stated that she believed that plaintiff had revealed to his therapist a course of abusive conduct towards defendant. Defendant represented that she sought to review the therapist's records because of their relevance to the custody issues in the case as well as to the defendant's tort claim based on battered women's syndrome. Plaintiff objected to release of the records, claiming that physical custody was not an issue in the case, only joint legal custody, and that, in any event, Dr. Montgomery's report provided sufficient information on the mental state of plaintiff for purposes of the custody and visitation issues. Plaintiff further argued that, although defendant's psychological records were put at issue by her tort claims alleging her own psychological damages, plaintiff's mental state was not similarly at issue. Plaintiff asserted that, therefore, defendant could not overcome the psychologist-patient privilege to obtain his records.

The Family Part ordered each party to sign authorizations releasing their respective psychological records to opposing counsel. The court further ordered that the records might be reviewed by the parties themselves, but not released to them. In a letter to the parties dated May 23, 1995, the court explained:

The Court feels 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 ...


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