Bottorff v. Bottorff

JENNIFER BENKE BOTTORFF v. CHRISTIAN TODD BOTTORFF

No. M2019-00676-COA-R3-CV

COURT OF APPEALS OF TENNESSEE AT NASHVILLE

February 4, 2020 Session

May 27, 2020

Appeal from the Circuit Court for Davidson County

No. 12D-2766

Phillip R. Robinson, Judge

In this post-divorce custody modification action, the Davidson County Circuit Court ("trial court") entered a protective order requiring the return and permanent destruction of documents, including copies, that were allegedly central to the mother's separate professional malpractice action against the father's testifying expert. The trial court subsequently denied the mother's motion for relief from the protective order, wherein she sought access to the documents for her use in the professional malpractice action. Although the mother filed a motion seeking to alter or amend the trial court's order, the trial court also denied that motion. The mother has appealed. Following our thorough review of the record and applicable case law, we vacate the trial court's order denying the mother's motion to alter or amend as it pertains to the documents produced during discovery. We remand this issue to the trial court for further hearing, as necessary, and determination of the issue based upon the appropriate factors. We reverse the trial court's order denying the mother's motion to alter or amend as it pertains to the trial transcript and exhibits. We deny the father's request for an award of attorney's fees on appeal.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Reversed in Part, Vacated in Part; Case Remanded

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D. BENNETT and RICHARD H. DINKINS, JJ., joined.

Jerry E. Martin and Seth M. Hyatt, Nashville, Tennessee, for the appellant, Jennifer Benke Bottorff.

Helen Sfikas Rogers and George D. Spanos, Nashville, Tennessee, for the appellee, Christian Todd Bottorff.

OPINION

I. Factual and Procedural History

Christopher Todd Bottorff ("Father") and Jennifer Benke Bottorff ("Mother") were divorced by final decree entered March 26, 2013, and the trial court concomitantly entered a Permanent Parenting Plan order ("PPP") regarding the parties' respective responsibilities for their two minor children. In the PPP, Mother was named primary residential parent of the children and was granted 223 days per year of co-parenting time. Father enjoyed 142 annual co-parenting days.

On May 4, 2017, Father filed an "Emergency Ex Parte Petition for Immediate and Exclusive Custody and Change of Custody" ("the Emergency Petition"). In the Emergency Petition, Father averred that the children's attitudes toward him had become increasingly negative following the parties' divorce. Father alleged that Mother had failed to exercise her parental authority and was too permissive regarding the attitudes of the children. Father further alleged that the children had exhibited signs of parental alienation. At the time of the Emergency Petition's filing, the minor daughter was thirteen years of age, and the minor son was eleven.

Mother filed a response to the Emergency Petition, denying that she had engaged in parental alienation. Mother averred that Father had "difficulties" with the children as a "direct result of his own lack of warm parenting, his deficient parenting skills, his demands for adoration and love, his lack of discipline, and the general, negative attitude Father has toward Mother."

In the Emergency Petition, Father attached and relied upon certain records of Dr. David McMillan, a clinical psychologist who had conducted sessions with the parties and their minor daughter. On May 16, 2017, Father filed a motion seeking to place Dr. McMillan's psychological report and counseling records under seal and requesting a protective order to prevent disclosure of the records. On May 17, 2017, Mother filed a response to Father's motion to place the records under seal wherein she requested a full copy of Dr. McMillan's records. During a May 18, 2017 show cause hearing concerning the Petition, Dr. McMillan testified, and certain of his records were entered into evidence.¹ Although Mother did not object to the entry of a protective order in her written response, Mother's attorney did object to entry of such an order during the May 18, 2017 hearing. On May 22, 2017, the trial court entered a protective order concerning the records, placing them under seal. Subsequent protective orders were entered by thetrial court to cover additional records from Dr. McMillan and other psychological experts.

On March 2, 2018, Mother filed a motion for relief from the protective orders, stating that she planned to pursue a separate cause of action (with different counsel) against Dr. McMillan for professional negligence. In this motion, Mother requested that the seal respecting the records be partially removed and that she be allowed to share Dr. McMillan's records and testimony with her newly retained counsel in order to prepare for the negligence action. The trial court entered an order on March 27, 2018, granting Mother's request and modifying its previous orders to allow Mother to share Dr. McMillan's records and testimony with her counsel and any expert retained by her counsel. The court further ordered that such documents must be maintained in strict confidence by Mother's counsel and experts.

Concerning the co-parenting issues, on November 8, 2018, the trial court approved an agreed order incorporating a modified permanent parenting plan. Entry of this order triggered a requirement from the protective order entered on May 22, 2017, which provided that the records "supplied to counsel for the parties and any and all copies and/or excerpts shall be returned to the Court within thirty (30) days for destruction by the Court." Subsequently, on December 19, 2018, Mother filed an additional motion for relief from the previously entered protective orders. In this motion, Mother stated that she had retained counsel to represent her and had filed a professional malpractice action against Dr. McMillan. Mother thereby requested that she be allowed to transfer the materials subject to the protective orders to her attorneys in the malpractice action. Mother acknowledged that she would seek an order in the separate action providing that any sensitive information related to the children would be protected by the attorneys and judge.

The trial court conducted a hearing concerning Mother's motion on January 18, 2019, and issued an order denying the motion on February 4, 2019. The trial court ordered that the documents and records must be returned and destroyed, determining that neither Father's nor the minor children's mental health were at issue in Mother's professional malpractice action and that Father had not waived the psychologist-client privilege. The court further noted that because no appeal had been taken from the November 8, 2018 order, such order had become final.

On February 12, 2019, Mother filed a motion to alter or amend, limiting the scope of her request for relief from the protective orders to a narrow set of records. The trial court denied Mother's motion to alter or amend on March 25, 2019, predicating its ruling upon concerns regarding the children's best interest. The trial court ordered that the documents would be preserved pending the outcome of Mother's appeal. Mother timely appealed.

II. Issues Presented

Mother presents the following issue for review, which we have restated slightly:

1. Whether the trial court erred by ordering the return and permanent destruction of documents that Mother had asserted were necessary to her separate professional malpractice action against Father's testifying expert.

Father raises the following additional issue, which we have also restated slightly:

2. Whether Father is entitled to an award of attorney's fees incurred in defending this appeal.

III. Standard of Review

Regarding the standard of review applicable to modification of a protective order that concerns discovery documents, this Court has previously explained:

Generally, the granting, denying, or modifying of a protective order relating to discovery procedures under Rule 26.03 rests within the sound discretion of the trial court. Ballard [v. Herzke], 924 S.W.2d [652,] 659 [(Tenn. 1996)]; Summers v. Cherokee Children's & Family Servs. Inc., 112 S.W.3d 486, 530 (Tenn. Ct. App. 2002). Accordingly, the decision of a trial judge on a protective order is reviewed on appeal for an abuse of discretion.

In re NHC-Nashville Fire Litig., 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008). Similarly, modification of an order sealing records aside from discovery documents is reviewed pursuant to the same standard. See Kocher v. Bearden, No. W2017-02519-COA-R3-CV, 2018 WL 6423030, at *10 (Tenn. Ct. App. Dec. 5, 2018) ("Kocher II").

As our Supreme Court has elucidated concerning the abuse of discretion standard of review:

The abuse of discretion standard of review envisions a less rigorous review of the lower court's decision and a decreased likelihood that the decision will be reversed on appeal. Beard v. Bd. of Prof'l Responsibility, 288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v. Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000). It reflects an awareness that the decision being reviewed involved a choice among several acceptable alternatives. Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708 (Tenn. Ct.App. 1999). Thus, it does not permit reviewing courts to second-guess the court below, White v. Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App. 1999), or to substitute their discretion for the lower court's, Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003); Myint v. Allstate Ins. Co., 970 S.W.2d 920, 927 (Tenn. 1998). The abuse of discretion standard of review does not, however, immunize a lower court's decision from any meaningful appellate scrutiny. Boyd v. Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct. App. 2002).

Discretionary decisions must

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