                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                           Assigned on Briefs April 13, 2012

                    ASHLEY HERMAN v. DANIEL HERMAN

                 Appeal from the Circuit Court for Davidson County
                      No. 08D1900      Carol Soloman, Judge


                 No. M2012-00395-COA-R10-CV - Filed May 9, 2012


Two years after the divorce, Father sought to be named primary residential parent due to
Mother’s alleged deteriorating mental health. Father sought discovery of Mother’s mental
health records. Mother objected. The trial court ordered production of the records for in
camera inspection. Mother filed an appeal pursuant to Tenn. R. App. P. 10, which this court
granted. We reverse the trial court’s order.

Tenn. R. App. P. 10 Extraordinary Appeal; Judgment of the Circuit Court Reversed

A NDY D. B ENNETT, J., delivered the opinion of the Court, in which P ATRICIA J. C OTTRELL,
P.J., M.S., and R ICHARD H. D INKINS, J., joined.

Mary B. Langford, Nashville, Tennessee, for the appellant, Ashley Herman.

Michael K. Smith, Nashville, Tennessee, for the appellee, Daniel Herman.

                                        OPINION

       Ashley Herman (“Mother”) and Daniel Herman (“Father”) divorced in 2009. They
had one child. The parenting plan named Mother as the primary residential parent. Father
received two days and three nights a week with the child. Unfortunately, Mother continued
to experience mental health problems which resulted in several extended hospitalizations.
During these hospitalizations, the child stayed with Father.

        On June 22, 2011, Father filed a petition seeking to modify custody and child support
based on Mother’s hospital stays. The petition states that Mother has “a history of mental
illness and was diagnosed years ago during the marriage with multiple personality disorder.”
It alleges that “over the past year the Mother’s mental illness has substantially worsened,”
that “she has not been compliant with her medication nor treatment,” and that she was
hospitalized from October 2010 to February 2011 and again on June 13, 2011. The petition
maintains that “living with and observing this behavior and mental illness on a daily recurrent
basis must be severely detrimental” to the child. Although the petition states that “Father has
observed increased seriousness of the illness,” it fails to state what actions or symptoms have
been observed. Father’s petition maintains that the child’s residence with Mother is not in
the child’s best interest and that Mother’s deteriorating mental health, coupled with the
corresponding increase in care by Father, represents a substantial and material change of
circumstances.

       Father sought discovery from Mother in which he sought to acquire her mental health
records. Mother objected. Father filed a motion to compel and Mother filed a motion to
quash it. At the hearing on both motions, the trial court ordered that the records be filed
under seal with the court clerk within two weeks. There is some dispute about whether
permission for an interlocutory appeal was granted by the trial court, but there is no dispute
that the court refused to stay the order to produce the records. Because the order was not
stayed, Mother sought appellate review under Tenn. R. App. P. 10 even though the trial
court’s written order had not been entered. On February 24, 2012, this court stayed
enforcement of the trial court’s order and ordered Father to file an answer to Mother’s
application. On March 13, 2012, we granted the application for extraordinary appeal and
ordered the trial court clerk to transmit the record. Because the filings set forth fully the
parties’ positions, we waived further briefing and oral argument to expedite the appeal and
save the parties additional time and expense.

       Once permission to appeal an interlocutory order has been granted, the issues raised
are reviewed and decided in the same manner as in appeals as of right. Peck v. Tanner, 181
S.W.3d 262, 265 (Tenn. 2005); State v. Moore, 775 S.W.2d 372, 374 (Tenn. Crim. App.
1989). Thus, conclusions of law are reviewed under a de novo standard with no presumption
of correctness. Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).

       There is little doubt that the records sought by Father are confidential. See Tenn.
Code Ann. §§ 24-1-207 and 63-11-213.1 In fact, Father does not challenge their
confidentiality.2 Rather, he argues that Tenn. Code Ann. § 33-3-105 allows disclosure of
these records. In State v. Fox, 733 S.W.2d 116, 118 n.1 (Tenn. Crim. App. 1987), however,


        1
          Tenn. Code Ann. § 24 -1-207 is the psychiatrist - patient privilege and Tenn. Code Ann. § 63-11-213
is the psychologist/psychological examiner-client privilege.
        2
          We note that Father’s request for production included a request for a signed HIPPA release form
for all records of psychological treatment providers in the past five years. This request shows that Father
knew that such records are confidential.

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the court stated that “Title 33 of the Tennessee Code deals with mentally ill and retarded
persons in the care and custody of the State.” Since Mother was not in the care and custody
of the State of Tennessee, Tenn. Code Ann. § 33-3-105 does not apply.

        Father also argues that the records must be produced so the court can fulfill its
obligation to consider the mental health of the parents and caregivers as required by Tenn.
Code Ann. § 36-6-106, which lists factors for the court to consider in determining the child’s
best interest in the course of a custody proceeding. Courts should and do consider this factor
when one or both parties provide evidence relating to the mental health of the parents or
caregivers. It is not, however, a license to disregard statutory privileges from disclosure.

       Father indicates that he has not sought an order for a mental health examination of
Mother under Tenn. R. Civ. P. 35.01 because it “would likely be much more intrusive to the
Mother, may not determine all the significant mental health concerns of the Mother, and
would require the mother’s cooperation and verbal responses (which she would refuse).”
Reviewing Mother’s recent records would, he argues, “be quicker, more insightful and less
of a burden on the Mother and Father,” as well as less expensive. While, at least in Father’s
view, disclosure of Mother’s records is the simplest and best way to resolve his evidentiary
needs, Mother has the right not to waive her statutory privileges. Given this state of affairs,
Father must decide whether he wants to seek a Rule 35.01 mental health examination of
Mother. Rule 35.01 is applicable to any action in which the Rules of Civil Procedure apply.
Odom v. Odom, No. M1999-02811-COA-R3-CV, 2001 WL 1543476, at *5 (Tenn. Ct. App.
Dec. 5, 2001). In order to invoke Rule 35.01, Father must establish that Mother’s mental
health is “in controversy,” and that “good cause” exists for the examination. Id.

       We reverse the trial court’s order to produce the records at issue. Costs of appeal are
assessed against the appellee, Daniel Herman.


                                                       ______________________________
                                                            ANDY D. BENNETT, JUDGE




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