[Cite as Banchefsky v. Banchefsky, 2014-Ohio-899.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

Debra K. Banchefsky, : 

 Plaintiff-Appellee, : 

v. : No. 13AP-300 

 (C.P.C. No. 08DR-259) 

Robert Banchefsky, : 

 (REGULAR CALENDAR) 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on March 11, 2014 

 

Gary J. Gottfried Co., L.P.A., and Gary J. Gottfried, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas, 

Division of Domestic Relations 

CONNOR, J. 

{¶ 1} Defendant-appellant, Robert Banchefsky, appeals from a judgment of the 

Franklin County Court of Common Pleas, Division of Domestic Relations, denying his 

motion to set aside a magistrate's order finding that his pre-decree medical records were 

subject to discovery. Plaintiff-appellee, Debra Banchefsky, has not filed an appellee 

brief with this court. As such, the matter is before us solely on the arguments contained 

in defendant's brief and presented at oral argument. Because (1) res judicata does not 

bar plaintiff from discovering defendant's pre-decree medical records, but (2) the trial 

court erred by failing to conduct an in camera inspection of the medical records before 

ordering their production, we affirm in part, reverse in part, and remand the case to the 

trial court. 

I. FACTS & PROCEDURAL HISTORY 
No. 13AP-300 2 

{¶ 2} The matter currently before this court concerns a discovery dispute, which 

arose after defendant filed a motion to modify and/or terminate his spousal support 

obligation. The court determined defendant's spousal support obligation in the parties' 

divorce decree, issued on September 28, 2009. The facts underlying the decree were 

detailed by this court in Banchefsky v. Banchefsky, 10th Dist. No. 09AP-1011, 2010-

Ohio-4267 as follows: 

The parties were married on January 13, 1985 and had two 

children during the marriage. At present, both children are 

beyond the age of majority; however, only the older child is 

emancipated. The younger child is not emancipated due to 

developmental disabilities. 

During the marriage, the parties resided in Bexley, Ohio. 

[Plaintiff] is employed as a speech and language pathologist. 

[Defendant] is a licensed practicing dentist and, during most 

of the marriage, was the sole shareholder of a dental practice 

known as Eastside Family Dental, Inc. (“Eastside Family 

Dental”). 

On January 23, 2008, [plaintiff] filed a complaint for 

divorce, naming both [defendant] and Eastside Family 

Dental as defendants. [Defendant] filed an answer and 

counterclaim on February 14, 2008; Eastside Family Dental 

did not file an answer. Upon motion of [defendant], the trial 

court joined Raymond James Financial Services, Inc. 

(“Raymond James”) as a third-party defendant; Raymond 

James filed an answer on April 29, 2008. Upon the parties' 

separate motions, the court issued standard temporary 

restraining orders pertaining to financial issues. In addition, 

the court, through a magistrate, issued temporary orders. 

On October 16, 2008, [defendant] filed a motion for 

modification of the temporary restraining orders to allow 

[defendant] to sell his dental practice. On May 19, 2009, the 

parties filed an agreed judgment entry modifying the 

temporary restraining orders to allow [defendant] to proceed 

with the sale. On May 21, 2009, [defendant] sold the practice 

to another dentist for $580,000 pursuant to an Asset 

Purchase Agreement (“APA”). The APA specifically included 

the sale of the trade name “Eastside Family Dental,” along 

with the telephone and facsimile numbers, e-mail addresses, 

websites, and web address for Eastside Family Dental. In 

addition, the APA included a non-competition clause 
No. 13AP-300 3 

precluding [defendant] from practicing dentistry within a 

ten-mile radius of Eastside Family Dental for five years, 

except as an associate of Eastside Family Dental. The APA 

further provided that [defendant] would work as an 

independent contractor for Eastside Family Dental for a 

period of time not to exceed six months following the sale. 

Thereafter, the divorce proceeded to trial over several days in 

June, August, and September 2009. On September 28, 2009, 

the trial court filed a Decision and Judgment Entry Decree of 

Divorce. Therein, the court granted the parties a divorce, 

divided the marital property, determined that the parties are 

obligated to support the younger child beyond the age of 

majority, allocated parental rights and responsibilities for 

that child, ordered [defendant] to pay spousal support of 

$6,000 per month plus processing charge, and ordered 

[defendant] to pay child support in the amount of $1,500 per 

month plus processing charge. In addition, the court 

released the other defendants from the case. 

Banchefsky at ¶ 2-6. 

{¶ 3} Defendant presented five assignments of error in Banchefsky. This court 

overruled defendant's five assigned errors, and affirmed the judgment entry decree of 

divorce ("decree"). 

{¶ 4} In the decree, the court analyzed R.C. 3105.18(C)(1) factors before making 

an award of spousal support. The court noted that while plaintiff's annual income as a 

speech pathologist was $66,560, defendant's annual income as an independent 

contractor working for his former dental practice was projected to be between $150,000 

and $170,000 for 2009. The court found that while plaintiff's earning ability was 

reflected in her current income, defendant's "actual relative earning ability [was] more 

difficult to ascertain," due to the sale of his dental practice. (Decree, 35.) The court 

determined that the defendant was voluntarily under-employed, and that he could be 

earning $312,131 per year. The court also noted that there was "no indication that 

Defendant suffers from mental or physical disabilities, which prevented him from 

maintaining his practice and/or working as a dentist." (Decree, 37.) 

{¶ 5} The court then addressed the R.C. 3105.18(C)(1)(c) factor regarding the 

ages and the physical, mental, and emotional conditions of the parties. The court noted 
No. 13AP-300 4 

that plaintiff was 52-years old and had been diagnosed with ovarian cancer in 1995, but 

underwent treatment and had been cancer free since that time. The court further noted 

that plaintiff suffered from fibromyalgia, arthritis, and migraines. Regarding defendant, 

the court stated simply that defendant was "52 years old and appears to be in good 

physical health." (Decree, 38.) The court then addressed the remaining applicable R.C. 

3105.18(C)(1) factors, and found an award of spousal support to be appropriate. The 

court ordered that, beginning October 1, 2009, defendant was to pay plaintiff the sum of 

$6,000 per month in spousal support, until either parties' death, or plaintiff's 

remarriage or cohabitation with an unrelated adult male. The court also expressly 

retained jurisdiction to modify and/or terminate the award upon demonstration of a 

substantial change of circumstances. 

{¶ 6} Defendant filed a motion to modify and/or terminate his spousal support 

obligation on January 25, 2011. Defendant alleged that there had been a substantial 

change in circumstances since the issuance of the decree. Specifically, defendant 

asserted that he had experienced "a reduction in employment hours and income." 

(Motion to Modify, 2.) In an attached affidavit, defendant indicated that his annual 

gross income had decreased from $154,000 at the time of the decree, to $108,000 at the 

time defendant filed the motion. 

{¶ 7} On June 30, 2011, plaintiff filed a motion to dismiss defendant's motion to 

modify and/or terminate spousal support, asserting that there had not been a 

substantial change in circumstances. Plaintiff noted that the trial court and the 

appellate court had determined that defendant directly contributed to the reduction in 

his income, such that any decrease in defendant's income was not a substantial change 

in circumstances, "but [was] exactly what the court found he did throughout the 

pendency of his divorce case." (Plaintiff's Motion to Dismiss, 4.) 

{¶ 8} On March 30, 2012, plaintiff's counsel issued a subpoena to Dr. Charles 

Gerlach. The subpoena requested Dr. Gerlach to produce "[t]he entire file maintained 

by you and/or Charles E. Gerlach, Ph.D. & Associates regarding Robert Banchefsky 

* * *." (Dr. Gerlach Subpoena Duces Tecum, Exhibit A.) Thereafter, the trial court 

requested that the parties submit memoranda of law to the court by July 30, 2012, 

regarding the discoverability of defendant's pre-decree medical records. 
No. 13AP-300 5 

{¶ 9} In her memorandum, plaintiff noted that defendant claimed that he 

"suffer[ed] from mental and physical health problems which have resulted in his 

inability to work and earn at the same level as he did prior to the parties divorce; and 

therefore, his support obligations should be modified or terminated." (Plaintiff's 

Memorandum of Law, 2.) As such, plaintiff had asked defendant to sign medical 

releases for the specific health care providers he saw during the parties' divorce and 

after the divorce. Defendant refused to sign the releases, asserting that his pre-decree 

medical records were irrelevant, privileged, and not discoverable. 

{¶ 10} Plaintiff asserted that defendant's medical records were not privileged, as 

defendant had placed these records at issue by filing the motion to modify and/or 

terminate his spousal support obligation. Plaintiff also noted that, "[d]uring the course 

of the parties divorce case, Defendant underwent treatment and was hospitalized for 

psychiatric/medical problems, the nature and extent of which he never disclosed." 

(Plaintiff's Memorandum of Law, 3.) Plaintiff asserted that defendant had "refused to 

disclose information related to his treatment because he argued he did not intend [to] 

use it as a factor for the court to consider when it determined his spousal support 

obligation." (Plaintiff's Memorandum of Law, 3.) Plaintiff argued that the court should 

order defendant to sign the releases and produce his pre-decree medical records, 

because without such evidence plaintiff would not be able to ascertain whether 

defendant's medical condition had changed since the time of the decree. Plaintiff 

further asserted that an in camera inspection of the medical records was unnecessary. 

{¶ 11} Defendant admitted that the basis for his motion to modify and/or 

terminate spousal support was his current health and disability, which had resulted in 

an involuntary reduction to his income. Defendant asserted that, as the parties 

"previously litigated to finality the issue of Defendant's mental, physical and emotional 

health," res judicata precluded plaintiff from discovering his pre-decree medical records. 

Defendant asserted that plaintiff was precluded from attempting to re-litigate "a R.C. 

3105.18 spousal support factor (e.g. party health) through the discovery of Defendant's 

pre-decree medical records." (Defendant's Memo in Opposition to Disclosure of PreDivorce Medical Records, 4.) Accordingly, defendant asked the court to deny plaintiff's 

request for his pre-decree medical records. In the alternative, defendant asked the court 
No. 13AP-300 6 

to conduct an in camera inspection of the records, to determine if the medical records 

had a causal or historic relationship to the issues in the current proceedings. 

{¶ 12} On November 20, 2012, the magistrate issued an order finding that 

defendant's pre-decree mental health records were subject to discovery. The magistrate 

noted that, while the court found defendant to be in good physical health in the decree, 

the court had "made no specific findings as to Defendant's mental health." (Magistrate's 

November 20, 2012 Order, 1.) Accordingly, the magistrate held that any alleged change 

of circumstances based on defendant's mental health called into question defendant's 

mental health at the time of the decree. The magistrate ordered that defendant provide 

plaintiff with "any and all discovery related to his mental health or treatment for mental 

health related issues from the date of filing of the parties' divorce action to present, 

including any diagnosis regarding Defendant's mental health that was being treated 

during the parties' divorce proceedings." (Magistrate's November 20, 2012 Order, 2.) 

{¶ 13} Defendant filed a motion to set aside the magistrate's order on November 

28, 2012. In the motion to set aside, defendant asserted that he "believe[d] that Plaintiff 

had knowledge of Defendant's hospitalization" during the divorce proceedings, and 

asserted that plaintiff chose not to present evidence regarding defendant's 

hospitalization during the trial. Accordingly, defendant contended that res judicata now 

barred plaintiff from raising the issue of defendant's pre-decree mental health. 

{¶ 14} Plaintiff filed a memorandum contra defendant's motion to set aside on 

December 7, 2012. Plaintiff asserted that she did not have an obligation to present 

evidence during the trial regarding defendant's hospitalization, noting that defendant 

had refused to disclose information to her regarding the hospitalization. Plaintiff 

asserted that defendant had the burden to raise his mental health issues as a defense to 

the amount of spousal support. 

{¶ 15} On March 21, 2013, the trial court issued a decision and judgment entry 

denying defendant's motion to set aside the magistrate's decision. The court noted that 

"[d]efendant's mental and physical health are issues which he has raised in his Motion 

to Modify, indicating that circumstances have changed since the date of the parties' 

divorce and his current mental and physical health render him disabled to a degree that 

did not exist at the time of the parties' divorce." (Decision, 3.) The court noted that, 
No. 13AP-300 7 

while defendant contended that the requested information would not be admissible at 

trial, the magistrate would "be able to discern the admissibility of said information at 

the time it is presented." (Decision, 3.) The trial court thus found that any ruling on the 

ultimate admissibility of the requested evidence was "premature." (Decision, 3.) The 

court ruled that the information contained in defendant's pre-decree mental health 

records was likely to lead to relevant evidence, and was thus subject to discovery. 

II. ASSIGNMENTS OF ERROR 

{¶ 16} Defendant appeals, assigning the following errors: 

1. Collateral estoppel and/or res judicata operate to render 

Appellant's pre-Decree medical records irrelevant to the 

current proceedings and the trial court erred and abused its 

discretion when it concluded that Appellant's pre-Decree 

medical records are discoverable. 

2. For the reason that Appellant's pre-Decree medical 

records are privileged and because they are not related to the 

current proceedings due to the operation of collateral 

estoppel and/or res judicata, the trial court erred and abused 

its discretion when it concluded that Appellant's pre-Decree 

medical records are discoverable. 

3. The trial court erred and abused its discretion when it 

failed to order an in camera inspection of any medical 

records to be produced prior to release to third parties. 

III. FIRST ASSIGNMENT OF ERROR – RES JUDICATA 

{¶ 17} Defendant's first assignment of error asserts that res judicata and 

collateral estoppel bar plaintiff from discovering his pre-decree medical records. 

Defendant contends that the court ruled upon defendant's physical, mental, and 

emotional well being in the decree, thereby rendering any evidence of defendant's predecree medical condition res judicata, irrelevant to the current proceedings, and nondiscoverable. 

{¶ 18} " 'The standard of review of a trial court's decision in a discovery matter is 

whether the court abused its discretion.' " Maschari v. Tone, 103 Ohio St.3d 411, 2004-

Ohio-5342, ¶ 18, quoting State ex rel. Denton v. Bedinghaus, 98 Ohio St.3d 298, 2003-

Ohio-861, ¶ 31. The term "abuse of discretion" connotes more than an error of law or 
No. 13AP-300 8 

judgment; it implies that the court's attitude is unreasonable, arbitrary or 

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983). 

{¶ 19} The scope of pretrial discovery is very broad. Civ.R. 26(B)(1) provides that 

"[p]arties may obtain discovery regarding any matter, not privileged, which is relevant 

to the subject matter involved in the pending action." The rule further provides that 

"[i]t is not ground for objection that the information sought will be inadmissible at the 

trial if the information sought appears reasonably calculated to lead to the discovery of 

admissible evidence." Civ.R. 26(B)(1). 

{¶ 20} A trial court has broad discretion in determining a spousal support award, 

including whether or not to modify an existing award. Samblanet v. Samblanet, 12th 

Dist. No. CA2013-03-040, 2013-Ohio-5768, ¶ 18. To modify a spousal support award, a 

trial court must find that (1) the divorce decree contained a provision specifically 

authorizing the court to modify the spousal support, and (2) the circumstances of either 

party have changed. Id. at ¶ 19; R.C. 3105.18(E). A change of circumstances of a party 

includes, but is not limited to, any increase or involuntary decrease in the party's wages, 

salary, bonuses, living expenses, or medical expenses. R.C. 3105.18(F).1 The court must 

find a substantial change in circumstances before modifying a prior spousal support 

order. Mandelbaum v. Mandelbaum, 121 Ohio St.3d 433, 2009-Ohio-1222, ¶ 31. The 

change in circumstances also "must be one that had not been contemplated and taken 

into account by the parties or the court at the time of the prior order." Id. at ¶ 32. The 

party seeking modification of a spousal support obligation bears "the burden to establish 

that a substantial change in circumstances has occurred since the time of the trial 

court's original decision." Flauto v. Flauto, 7th Dist. No. 05 MA 100, 2006-Ohio-4909, 

¶ 11. 

{¶ 21} The trial court record reveals that defendant filed the motion to modify 

and/or terminate based upon a reduction in his income, resulting from his mental and 

physical health issues. Because defendant must demonstrate that a substantial change 

in circumstances has occurred, which he did not contemplate at the time of the divorce, 

 

1 R.C. 3105.18 has been amended, and the changes became effective on March 22, 2013. As the trial court 

issued its decision denying defendant's motion to set aside the magistrate's decision on March 21, 2013, 

we will address the statute as it appeared at the time of the judgment. 
No. 13AP-300 9 

we find that defendant's pre-decree mental health records are relevant to the current 

action, and thus subject to discovery. Defendant asserts that res judicata bars plaintiff 

from discovering his pre-decree medical records. 

{¶ 22} The doctrine of res judicata provides that "[a] valid, final judgment 

rendered upon the merits bars all subsequent actions based upon any claim arising out 

of the transaction or occurrence that was the subject matter of the previous action." 

Grava v. Parkman Twp., 73 Ohio St.3d 379 (1995), syllabus. " 'It has long been the law 

of Ohio that "an existing final judgment or decree between the parties to litigation is 

conclusive as to all claims which were or might have been litigated in a first lawsuit." ' " 

(Emphasis sic.) Id. at 382, quoting Natl. Amusements, Inc. v. Springdale, 53 Ohio St.3d 

60, 62 (1990), quoting Rogers v. Whitehall, 25 Ohio St.3d 67, 69 (1986) (noting that 

" '[t]he doctrine of res judicata requires a plaintiff to present every ground for relief in 

the first action, or be forever barred from asserting it' "). Id.

{¶ 23} The doctrine of res judicata has two aspects: claim preclusion and issue 

preclusion. Dehlendorf v. Ritchey, 10th Dist. No. 12AP-87, 2012-Ohio-5193, ¶ 13, citing 

Grava at 380. Issue preclusion, also known as collateral estoppel, provides that "a fact 

or a point that was actually and directly at issue in a previous action, and was passed 

upon and determined by a court of competent jurisdiction, may not be drawn into 

question in a subsequent action between the same parties or their privies, whether the 

cause of action in the two actions be identical or different." Fort Frye Teachers Assn., 

OEA/NEA v. State Emp. Relations Bd., 81 Ohio St.3d 392, 395 (1998). Thus, the 

collateral estoppel aspect of res judicata "precludes the relitigation, in a second action, 

of an issue that has been actually and necessarily litigated and determined in a prior 

action that was based on a different cause of action." Id. 

{¶ 24} Defendant asserts that, because the "parties litigated the issue of 

[defendant's] pre-decree health to finality as evidenced by the parties' Decree and, more 

specifically, the court's conclusion regarding the same therein that Appellant was in 

good health," the issue of his pre-decree health is now res judicata, and collateral 

estoppel bars plaintiff from attempting to present evidence regarding defendant's predecree health. (Appellant's brief, 5.) We disagree. 
No. 13AP-300 10 

{¶ 25} Defendant acknowledges that, "[a]t the time of the trial, there was no 

evidence presented by either party regarding Appellant's mental and emotional 

condition," and admits that his "mental or emotional health was not a factor that the 

court considered in its award of spousal support." (Appellant's brief, 2.) Defendant 

thus concedes that his mental or emotional health was not a fact or a point that was 

actually or directly at issue in the previous action. Because there was no evidence before 

the court regarding defendant's mental health, the trial court could not have made a 

ruling on that R.C. 3150.18(C)(1) factor when issuing the decree. Compare Mantle v. 

Sterry, 10th Dist. No. 02AP-286, 2003-Ohio-6058, ¶ 40 (noting that several of the R.C. 

3105.18(C)(1) factors were "inapplicable because no facts were adduced bearing upon 

them"). Thus, as the parties did not present evidence regarding defendant's mental 

health, and the trial court did not make a ruling on defendant's mental health, res 

judicata and/or collateral estoppel cannot operate to bar discovery of defendant's predecree mental health records, which defendant has placed at issue by filing the motion 

to modify and/or terminate spousal support. 

{¶ 26} Defendant asserts that in Gross v. Gross, 64 Ohio App.3d 815 (10th 

Dist.1990) "this court applied res judicata/collateral estoppel to preclude relitigation of 

the issue of a R.C. 3105.18 spousal support factor." (Appellant's brief, 5.) In Gross, we 

applied res judicata to the amount of the spousal support award, which the trial court 

had determined after analyzing the relevant factors, and this court had affirmed in a 

separate appeal. In contrast, here, the trial court did not analyze the evidence regarding 

defendant's mental health, as there was no evidence to analyze, and did not make a 

ruling to which res judicata could attach. Gross is inapplicable to the instant action. 

{¶ 27} Defendant also indicates that his pre-decree medical records are res 

judicata because plaintiff chose not to present any evidence regarding the issue of 

defendant's mental health during the trial. Defendant notes his "belie[f] that [plaintiff] 

had knowledge of a period of hospitalization for [defendant] during the divorce 

proceedings," and asserts that plaintiff intentionally chose not to litigate defendant's 

mental health at the time of trial. (Appellant's brief, 7.) However, the trial court record 

reveals that, while plaintiff was potentially aware of the hospitalization, defendant 

refused to provide plaintiff with any discovery regarding the hospitalization. As such, 
No. 13AP-300 11 

plaintiff did not possess any evidence to present to the court regarding defendant's 

hospitalization or mental health problems. 

{¶ 28} Moreover, the burden of establishing the need for spousal support rests 

with the party that is seeking such support. Barrientos v. Barrientos, 3d Dist. No. 5-12-

13, 2013-Ohio-424, ¶ 37. "[E]ach side has the burden of going forward with evidence as 

to any [R.C. 3105.18(C)(1)] factor which it wants considered, bringing forth facts tending 

to prove its version of the manner in which such factors should be applied." Id., citing 

Stetler v. Stetler, 6 Ohio App.3d 29 (3d Dist.1983). Accordingly, while plaintiff had the 

burden to establish her need for the spousal support award, defendant had an obligation 

to present the court with evidence regarding his mental health, if he wanted the court to 

consider his mental health issues when determining the appropriate amount to award as 

spousal support. 

{¶ 29} Defendant asserts that the "absence of a determination that [defendant] 

had any mental health issues * * * is conclusive and cannot be rebutted in these 

proceedings." (Appellant's brief, 8.) However, as noted, the reason there is no 

determination by the trial court regarding defendant's mental health is because 

defendant did not provide the court with evidence regarding his mental health during 

the divorce proceedings. Defendant may not willfully conceal his mental health 

condition from the trial court during the divorce proceedings, then later claim a change 

of circumstances has occurred based on a condition which defendant knew was in 

existence at the time of the decree. See Kaput v. Kaput, 8th Dist. No. 94340, 2011-Ohio10, ¶ 15 (noting that the party seeking modification of spousal support "must not have 

purposefully brought about the change"). 

{¶ 30} Defendant's pre-decree medical records are relevant to the instant action, 

as defendant has admitted that his motion to modify and/or terminate spousal support 

is based upon his deteriorating physical and mental health and his attendant reduction 

in income. As such, defendant's pre-decree mental health records are discoverable as 

they are likely to lead to admissible evidence regarding whether defendant has 

experienced a substantial change in circumstances sufficient to justify a modification to 

his spousal support obligation. The collateral estoppel aspect of res judicata does not 

prevent plaintiff from discovering defendant's pre-decree mental health records. 
No. 13AP-300 12 

{¶ 31} Based on the foregoing, defendant's first assignment of error is overruled. 

IV. SECOND ASSIGNMENT OF ERROR – PRIVILEGE 

{¶ 32} Defendant's second assignment of error asserts that his pre-decree 

medical records are privileged documents pursuant to R.C. 2317.02(B), and thus not 

subject to discovery. Though we generally review discovery issues for an abuse of 

discretion when discovery involves questions of privilege, we review the order de novo. 

Ward v. Johnson's Indus. Caterers, Inc., 10th Dist. No. 97APE11-1531 (June 25, 1998). 

{¶ 33} Pursuant to R.C. 2317.02, a person's medical records are privileged and, 

therefore, undiscoverable. Groening v. Pitney Bowes, Inc., 8th Dist. No. 91394, 2009-

Ohio-357, ¶ 11. R.C. 2317.02(B)(1) generally precludes a physician from testifying 

concerning a communication made by a patient to the physician or the physician's 

advice to the patient. If, however, a patient files a civil action, a physician may be 

compelled to testify or to submit to discovery in that action as to a communication 

between the patient and physician "that related causally or historically to physical or 

mental injuries that are relevant to issues" in the action. R.C. 2317.02(B)(3)(a). See 

also R.C. 2317.02(B)(1)(a)(iii); Mason v. Booker, 185 Ohio App.3d 19, 2009-Ohio-6198, 

¶ 14 (10th Dist.). 

{¶ 34} Defendant acknowledges that, because he "is engaged in post-decree 

proceedings regarding spousal support and his health is a statutory factor that the court 

is required to consider, it is necessary to consider whether his pre-Decree health records 

are 'causally or historically related' to the pending action." (Appellant's brief, 9.) 

Defendant thus acknowledges that, by filing the motion to modify and/or terminate 

spousal support, he has placed his medical records at issue. 

{¶ 35} Defendant asserts that his pre-decree medical records are not causally or 

historically related to the issues in the current action due to the operation of collateral 

estoppel and/or res judicata. Defendant continues to assert that, as the court found an 

"absence of health issues" for defendant in the decree, his pre-decree medical records 

have no bearing on the pending motion as his health status at the time of the divorce has 

been "definitively and irrebuttably [sic] established." (Appellant's brief, 9.) 

{¶ 36} Defendant is essentially rehashing the arguments presented under his first 

assignment of error, and those arguments fail here for the same reasons explained 
No. 13AP-300 13 

above. At the time of the decree, the court did not have any evidence before it regarding 

defendant's mental or emotional health and, accordingly, the court could not have made 

a determination regarding his mental health. Accordingly, collateral estoppel and res 

judicata do not render defendant's pre-decree mental health records irrelevant to the 

current action. 

{¶ 37} Based on the foregoing, defendant's second assignment of error is 

overruled. 

V. THIRD ASSIGNMENT OF ERROR – IN CAMERA REVIEW 

{¶ 38} Defendant's third assignment of error asserts that the trial court erred in 

ordering defendant to produce his mental health records without first conducting an in 

camera inspection of those records to determine whether they contain privileged 

communications. We agree. 

{¶ 39} Only those documents deemed causally or historically related to physical 

or mental injuries, pursuant to R.C. 2317.02(B)(3)(a), are relevant to the issues in the 

case and subject to discovery. Nester v. Lima Mem. Hosp., 139 Ohio App.3d 883, 887 

(3d Dist.2000). Thus, "when there is a dispute about whether records are privileged, 

and when a party reasonably asserts that records should remain privileged, the trial 

court must conduct an in camera inspection of the records to determine if they are 

discoverable." Cargile v. Barrow, 182 Ohio App.3d 55, 2009-Ohio-371, ¶ 12 (1st Dist.) 

See also Groening at ¶ 12; Ward (noting that "the protection afforded under [R.C. 

2317.02] covers discovery and, therefore, it is entirely proper for a trial court to, if 

necessary, determine at the discovery phase what is causally or historically related"). 

{¶ 40} While this court has refused to find error where a trial court did not 

conduct an in camera inspection, but the appealing party had not requested one, see 

Mason at ¶ 19, here, defendant did request an in camera inspection. Although plaintiff 

argued in her memorandum of law that an in camera inspection was unnecessary, 

plaintiff concluded her memorandum by asking the court to compel the release of 

defendant's medical records, "or, in the alternative, that the Court conduct an in camera 

interview of Defendant's medical/psychological records to determine that they are 

causally and historically related to the issues before the court, and therefore that they 

are discoverable." (Plaintiff's Memorandum of Law, 5.) Accordingly, plaintiff has tacitly 
No. 13AP-300 14 

acknowledged that an in camera inspection of defendant's medical records is necessary 

in the instant action. 

{¶ 41} The magistrate ordered defendant to produce "any and all discovery 

related to his mental health" from the beginning of the divorce proceedings. 

(Magistrate's November 20, 2012 Order, 2.) Such a broad production order could 

conceivably include items which are privileged under R.C. 2317.02. Accordingly, the 

trial court must conduct an in camera inspection of the mental health records at issue. 

Additionally, although we do not know what kinds of mental health records defendant 

will produce, we note that the "conditions for disclosure listed in [R.C. 2317.02] are not 

the same for medical records as for counseling records." Folmar v. Griffin, 166 Ohio 

App.3d 154, 2006-Ohio-1849, ¶ 23 (5th Dist.) While psychiatrists are considered 

physicians, and psychiatric records are subject to release under R.C. 2317.02(B), R.C. 

2317.02(G) provides different requirements for disclosure of records from other mental 

health professionals, such as counselors and therapists. Id. at ¶ 18-22. 

{¶ 42} Based on the foregoing, we find that the trial court erred in not conducting 

an in camera inspection of the records before ordering them disclosed. The court must 

examine the records to determine, if the records are medical records to which R.C. 

2317.02(B) applies, whether the communication is causally or historically related to the 

issues in the present action. If the records are counseling records from mental health 

professionals who are not physicians, then R.C. 2317.02(G) applies and the court must 

determine whether the communication falls under one of the exceptions contained 

therein. Because the trial court did not determine, upon request, whether the records it 

ordered disclosed were privileged under R.C. 2317.02, we must remand the case for the 

court to conduct an in camera inspection of defendant's mental health records. 

{¶ 43} Based on the foregoing, defendant's third assignment of error is sustained. 

VI. DISPOSITION 

{¶ 44} Having overruled defendant's first and second assignments of error, but 

having sustained defendant's third assignment of error, we affirm in part the judgment 

of the Franklin County Court of Common Pleas denying defendant's motion to set aside 

the magistrate's November 20, 2012 decision, but reverse the judgment to the extent it 

did not require an in camera inspection of the medical records, and remand the case 
No. 13AP-300 15 

with instructions that the court conduct an in camera inspection of defendant's mental 

health records to determine which, if any, of those records are privileged and nondiscoverable under R.C. 2317.02. 

Judgment affirmed in part and reversed in part, 

case remanded with instructions. 

TYACK and KLATT, JJ., concur. 

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