HILMAR KRISTENSEN, PETITIONER,
v.
BAERBEL KRISTENSEN, RESPONDENT
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Hilmar Kristensen sought certiorari review of a trial court order requiring both parties to a dissolution action to undergo compulsory mental and physical examinations. The Florida Fifth District Court of Appeal granted the writ and quashed the order, holding that mental and physical health must be actually in controversy and good cause must be affirmatively shown, not merely alleged conclusively.
The court held that mental and physical health of parents is not in controversy merely because custody is disputed, and good cause must be affirmatively demonstrated, not merely alleged conclusively. Examinations cannot be ordered under Rule 1.360 absent both that the condition is really and genuinely in controversy and that good cause exists for the particular examination.
[1] A party seeking a compulsory mental or physical examination must demonstrate that the condition is "in controversy" and that there is "good cause" for the examination.
[2] A party's mental or physical health is not "in controversy" in a dissolution action merely because custody is disputed; it must be raised by the pleadings or a proper mot…
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Join FLexlaw to unlock all legal intelligence“the mental and physical health of the parties to this dissolution action was not in controversy, and good cause for the examinations was not shown”
Statement of the core issue and basis for quashing the order
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Join FLexlaw to unlock all legal intelligenceHilmar and Baerbel Kristensen were parties to a dissolution (divorce) action involving custody issues. The trial court ordered both parties to submit …
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SHARP, Judge.
The petitioner, Hilmar Kristensen, seeks review by certiorari of the trial court’s requirement that both Hilmar and his wife, Baerbel, submit to compulsory, jnental and physical examinations pursuant to Florida Rule of Civil Procedure 1.360. We grant the writ and quash the lower court’s order because the mental and/or physical health of the parties to this dissolution action was not in controversy, and good cause for the examinations was not shown.
We reject respondent’s argument that the mental health of any parent seeking custody of his or her child is in controversy simply because there are allegations that one or the other would be the better parent to have custody. In this case there was no allegation that either Hilmar or Baerbel was unfit to have custody, or that either had any kind of mental or physical illness or condition which would adversely affect his or her ability to be the custodial parent. Under these circumstances, although the “mental and physical health of the parents” is a factor the court should consider in resolving the issue of custody,1 it is not in controversy until raised by one of the parties in his or her pleadings, or by a proper motion.2
Further, Rule 1.360 requires a showing of “good cause” why the forced examination is necessary. No such showing was made here by the respondent. Her motion for the examination of her husband merely asserts in a conclusory way that Hilmar’s mental condition is in issue. The trial judge sua sponte ordered the examination of the wife without any request by the husband. It justified the ordered examination of the husband because he failed to follow the court’s orders and pay it more respect.3 We are sympathetic to the trial court’s position, but we conclude that behavior which may be appropriate for contempt proceedings does not necessarily translate into “irrational” behavior. We find no basis here to sustain the lower court’s conclusion there was good cause to order either of the examinations.
We agree with our sister court in Gasparino v. Murphy, 352 So. 2d 933 (Fla.2d DCA 1977), which quoted the landmark case of Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964), that the two requirements of “good cause” and being “in controversy”: *
... are not met by mere conclusory allegations of the pleadings — nor by mere relevance to the ease — but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering such particular examination. 379 U.S. at 118, 85 S.Ct. at 242-43.
352 So. 2d at 935. Unless the record posits a basis to support these two requirements, the order requiring the examination cannot stand under the Rules,4 and it constitutes a departure from the essential requirements of law. See City of Winter Park v. Jones, 392 So. 2d 568 (Fla. 5th DCA 1980); Colonial Penn Insurance Co. v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980); Smith v. Smith, 118 So. 2d 792 (Fla. 1st DCA 1960). Accordingly we grant the writ of certiorari and quash the order. WRIT OF CERTIORARI GRANTED; ORDER QUASHED.
DAUKSCH, C. J. and COBB, J., concur. . § 61.13(3)(g), Fla.Stat. (1979).
. See Paul v. Paul, 366 So. 2d 853 (Fla.3d DCA 1979); Roper v. Roper, 336 So. 2d 654 (Fla. 4th DCA 1976), cert. denied, 345 So. 2d 426 (Fla.1977).
.The court was apparently upset by various hearsay statements that Hilmar told Baerbel he had bribed this judge and fixed this case.
. Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla.3d DCA), review denied, 392 So. 2d 1378 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Boyles v. Mid-Florida Television Corp., 431 So. 2d 627 (Fla. 5th DCA 1983)…on as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination. Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); Kristensen v. Kristensen, 406 So. 2d 1210 (Fla. 5th DCA 1981). In all the cases cited, the mental examination has been requested to deal with mental problems, i.e., mental illness, psychoses, etc., and not merely with humili [*640] ation or depression which is felt as a result of defamatio…
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Williams v. Williams, 550 So. 2d 166 (Fla. 2d DCA 1989)…not put the appellant’s mental health “in controversy” nor demonstrate “good cause” for submission to examination. Fruh v. State, Department of Health & Rehabilitative Services, 430 So. 2d 581 (Fla. 5th DCA 1983). See also Kristensen v. Kristensen, 406 So. 2d 1210 (Fla. 5th DCA 1981); Paul v. Paul, 366 So. 2d 853 (Fla. 3d DCA 1979).1 Nor does the record demonstrate “good cause” for the ordered examination. Although the appellant did not submit to examination by the agency which the court had specified, he di…
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In the Interest of T.M.W., 553 So. 2d 260 (Fla. 1st DCA 1989)…arable rule provisions. See e.g., In the Interest of S.N. v. State, Dept. of Health & Rehab. Serv., 529 So. 2d 1156 (Fla. 1st DCA 1988); Fruh v. State, Dept. of Health & Rehab. Serv., 430 So. 2d 581 (Fla. 5th DCA 1983); and Kristensen v. Kristensen, 406 So. 2d 1210 (Fla. 5th DCA 1981). S.N., Fruh, and Kristensen all involved orders compelling psychological examinations in dependency proceedings, as to which the rules, infra, provide substantially the same standards as those applicable in this case. In the cite…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Schlagenhauf v. Holder, 379 U.S. 104 (U.S. 1964)
- Schottenstein v. Schottenstein, 384 So. 2d 933 (Fla. 3d DCA 1980)
- State v. Smith, 118 So. 2d 792 (Fla. 1st DCA 1960)
- Gasparino v. Corine Murphy, 352 So. 2d 933 (Fla. 2d DCA 1977)
- City OF Winter Park v. Jones, 392 So. 2d 568 (Fla. 5th DCA 1980)
- Thellie S. Roper v. Roper, 336 So. 2d 654 (Fla. 4th DCA 1976)
- Colonial Penn Ins. Co. & John Larocca v. Blair, 380 So. 2d 1305 (Fla. 5th DCA 1980)
- Seymour Paul v. Paul, 366 So. 2d 853 (Fla. 3d DCA 1979)