Banchefsky v. Banchefsky

[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 Pre-
Divorce 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 pre-
decree medical condition res judicata, irrelevant to the current proceedings, and non-
discoverable.
{¶ 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 pre-
decree 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 pre-
decree 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-Ohio-
10, ¶ 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 non-
discoverable 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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