DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JONATHAN SAMUEL BAILEY,

Petitioner,

v.

KATHY MICHELLE BAILEY,

Respondent.

No. 4D15-609

[September 9, 2015]

Petition for Writ of Certiorari to the Circuit Court for the Seventeenth 

Judicial Circuit, Broward County; Nicholas R. Lopane, Judge; L.T. Case 

No. 10-8092 33.

John E. Schwencke and Adam M. Zborowski of Nugent Zborowski & 

Bruce, North Palm Beach, for petitioner.

Michael J. Alman and Jamie D. Alman of Greenspoon Marder, P.A., 

Fort Lauderdale, for respondent.

PER CURIAM.

Jonathan Bailey (“Jonathan”), former husband of Kathy Bailey 

(“Kathy”), seeks certiorari relief from two overlapping trial court orders in 

a post-dissolution family law case. One order appointed a social 

investigator and the other, styled “omnibus order,” denied Jonathan’s 

motion to strike and/or dismiss a motion filed by Kathy. Her motion 

addressed time-sharing and asked that Jonathan submit to a psychosocial and substance abuse evaluation and consent to release of his 

mental health records to the investigator. We grant the petition in part 

and deny it in part. 

Certiorari lies because the orders compel production of confidential 

records and require a compulsory examination pursuant to Florida Rule 

of Civil Procedure 1.360. Smith v. Smith, 64 So. 3d 169, 170-71 (Fla. 4th 

DCA 2011); Wicky v. Oxonian, 24 So. 3d 571, 572 (Fla. 2d DCA 2009). 

Certiorari review calls for a determination of whether the discovery order 

constituted a departure from the essential requirements of law resulting 
2

in material injury with no adequate remedy on appeal. Allstate Ins. Co. v. 

Langston, 655 So. 2d 91, 94-95 (Fla. 1995).

We quash the provisions in the orders appointing a social investigator 

because Jonathan was not provided adequate prior notice. The motion 

to appoint social investigator was filed on the same day as the hearing, 

and Jonathan’s counsel objected to the lack of proper notice. See Henzel 

v. Golstein, 349 So. 2d 824, 825 (Fla. 3d DCA 1977) (holding that twentyfour hours’ notice of a hearing on a motion to dismiss was inadequate); 

Fla. R. Civ. P. 1.090(d).

Our ruling renders moot Jonathan’s separate argument that the trial 

court erred in ordering him to execute releases and consent forms to 

allow the social investigator to review his mental health records. If a 

social investigator is appointed in the future with adequate notice, 

Jonathan may assert the psychotherapist-patient privilege. If contested, 

the trial court could then determine whether that privilege should 

preclude production. Jonathan did not waive the privilege by relying on 

his mental condition to support any claims or defenses. Nor did this 

case present a “calamitous event” so as to preclude assertion of the 

statutory privilege. See Smith, 64 So. 3d at 172, n.2 (citing Miraglia v. 

Miraglia, 462 So. 2d 507 (Fla. 4th DCA 1984); Critchlow v. Critchlow, 347 

So. 2d 453 (Fla. 3d DCA 1977)).

We reject Jonathan’s challenge to those portions of the trial court’s 

orders that compelled him to submit to a psycho-social and substance 

abuse evaluation. “The granting or denying of an order for a 

psychological evaluation is a discretionary act.” Pariser v. Pariser, 601 

So. 2d 291, 292 (Fla. 4th DCA 1992). “Hence, we can overturn this 

discretionary ruling only upon a conclusion that no judge could 

reasonably have ordered such an evaluation.” Gordon v. Smith, 615 So. 

2d 843, 844 (Fla. 4th DCA 1993) (citing Pariser, 601 So. 2d at 292). 

The record evidence, including Jonathan’s involuntary hospitalization 

under section 394.463, Florida Statutes (2014), also called the “Baker 

Act,” demonstrated that his mental condition was in controversy and 

good cause was shown to compel his evaluation. The trial court made 

factual findings which adequately supported those conclusions. See 

Barry v. Barry, 159 So. 3d 306, 307 (Fla. 5th DCA 2015).

Compelling these evaluations is not inconsistent with recognizing that 

Jonathan may assert the privilege in objecting to production of his 

existing mental health records. This court observed in Flood v. Stumm, 

989 So. 2d 1240 (Fla. 4th DCA 2008), that:
3

Rather than ordering disclosure [of mental health 

records], the suggested procedure is to order a new 

psychiatric or psychological examination, thus balancing 

“the court’s need to determine the parents’ mental health as 

it relates to the best interest of the child, and the need to 

maintain the confidentiality between a treating 

psychotherapist and the patient.”

Id. at 1242 (quoting Schouw v. Schouw, 593 So. 2d 1200, 1201 (Fla. 2d 

DCA 1992)).

Finally, we conclude that the portion of the trial court’s order making 

Jonathan’s time-sharing with his minor children “subject to” the 

recommendations of the social investigator effectively and improperly 

delegated the court’s authority to the investigator. This portion of the 

order is quashed. The trial court should consider, but is not bound by, 

the testimony or recommendations of the investigator if one is eventually 

properly appointed. Schoonmaker v. Schoonmaker, 718 So. 2d 867, 868 

(Fla. 4th DCA 1998); § 61.20(1), Fla. Stat. (2014).

Granted in part; Denied in part.

TAYLOR, FORST and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.