Opinion
No. 4-082 / 03-1285.
June 23, 2004.
Appeal from the Iowa District Court for Jefferson County, Daniel P. Wilson, Judge.
A wife appeals from an order that allowed the husband to discover information the wife asserts is protected by privilege. AFFIRMED.
Allan C. Orsborn of Orsborn, Bauerle, Milani Grothe, L.L.P., Ottumwa, for appellant.
Thomas Makeig of Thomas H. Makeig, P.C., Fairfield, for appellee.
Considered by Mahan, P.J., and Zimmer and Eisenhauer, JJ.
Claire Wofford seeks interlocutory review and reversal of a district court discovery order. She contends the order permitted her husband, Peter Vonderheide, to inquire into matters protected by statutory privilege. We affirm the district court.
Both parties refer to Marilyn Claire Wofford as "Claire Wofford." For the purpose of this opinion we too will refer to the appellant by her middle, rather than first, name.
I. Background Facts and Proceedings.
Claire Wofford and Peter Vonderheide married in 1999. Although the couple had no children, Claire has two daughters, A.W. and E.W., from a prior marriage. The girls' father died in January 2002 leaving Claire as the surviving parent with sole legal custody.
In November 2002 Claire asked Peter to leave the family residence, and filed a petition for dissolution of the parties' marriage. The petition alleged Peter had been "sexually abusive with respect to" A.W., then nearly sixteen years old, and E.W., then twelve years old. The petition sought an order requiring Peter to vacate the family residence, as well as a temporary and permanent injunction preventing him from having any contact with Claire, A.W., or E.W. Based on the allegations in her petition, Claire obtained an ex parte order and injunction from the district court barring Peter from the marital home and prohibiting contact with Claire and her daughters.
Claire alleges that Peter is a sexual addict. She contends that during the course of the marriage on nights when she, Peter and the girls all slept in a "family bedroom," to enable Claire to engage in "nighttime parenting," Peter would masturbate in the couple's raised bed, while the girls were in their own beds nearby. She also contends Peter masturbated over his clothes while in front of the girls, and used pictures of the girls to masturbate at a fertility clinic. She further asserts Peter talked to A.W. while A.W. was wearing only a towel, and would enter the bathroom while A.W. was in the bathtub in order to hand her the phone. Peter disputes these allegations.
At the time Claire filed her petition, Peter was working as a teacher at the Maharishi School of the Age of Enlightenment (MSAE). Claire's daughters attend the same school. Soon after the ex parte order and injunction were entered, Claire informed Peter's employer of the allegations of sexual abuse. The school placed Peter on administrative leave.
Claire also contacted the Department of Human Services (DHS) shortly before she filed her petition. A DHS investigation concluded the alleged sexual abuse of Emily was not confirmed. It reached the same conclusion regarding allegations Peter had indecently exposed himself to either girl. However, with regard to A.W., DHS made a founded report of mental injury.
During the course of discovery in the dissolution proceedings, the parties have had several disputes over the extent of the information to which Peter was entitled. Many of the disputes arose over Peter's requests to discover information relating to the sexual abuse allegations. The dispute that gave rise to this appeal concerned whether questions Claire was asked during her deposition inquired into privileged matters. In particular, Claire's attorney and E.W. and A.W.'s guardian ad litem lodged privilege objections to questions regarding communications occurring during counseling sessions with counselor Mike Davis and involving either Claire and Peter, or Claire, E.W. and A.W.; communications during counseling sessions with psychologist Michelle Greene that involved Claire, E.W. and A.W.; a journal A.W. composed in conjunction with counseling; and a meeting at the children's school, MSAE, that involved Claire, Dr. Greene, and school employees.
Peter filed a motion with the court that requested an order compelling testimony in these areas from not only Claire, but also from Davis and Dr. Greene. The district court entered an order that allowed Peter to inquire into the various disputed areas, but provided that information to be elicited from E.W. and A.W. should come from the guardian ad litem. Peter was prohibited from contacting A.W. or E.W. directly. The court appeared to conclude that, to the extent Claire could establish any of the communications were protected by the spousal privilege of Iowa Code section 622.9 (2001), or the physician-patient privilege of section 622.10, the privilege had been abrogated by Iowa Code section 232.74.
The district court's ruling does not contain any definitive findings or conclusions that the matters sought to be discovered by Peter were in fact privileged, under sections 622.9 and 622.10 or any provision of law, or that any such privilege was abrogated by section 232.74. However, reviewing the totality of the court's ruling, it appears the court did conclude that, to the extent any privileges existed, they were abrogated by section 232.74. The court recognized that section 232.74 abrogated any privilege under sections 622.9 and 622.10, and noted that section 232.74 "may result in a waiver" of the privileges asserted by Claire.
After her motion to reconsider the court's order was denied, Claire filed an application for interlocutory appeal. The supreme court granted her application, and the matter comes before us for review. Claire asserts the district court erred in determining that section 232.74 abrogated the privileges of sections 622.9 and 622.10, and that Peter should accordingly be precluded from inquiring into or otherwise discovering information surrounding the school meeting, A.W.'s journal, and the communications during counseling sessions. Peter contends section 232.74 did abrogate any existing privilege and, alternatively, that privilege was waived.
II. Scope of Review.
We review a district court's statutory interpretation for the correction of errors at law. In re Marriage of Hutchinson, 588 N.W.2d 442, 446 (Iowa 1999). We reverse a district court's discovery ruling if it is based on legal error, or the court abused its discretion. Squealer Feeds v. Pickering, 530 N.W.2d 678, 681 (Iowa 1995). Abuse occurs if the ruling is based on grounds or reasons clearly untenable or unreasonable. Id. III. Discussion.
Section 232.74 provides:
Sections 622.9 and 622.10 and any other statute or rule of evidence which excludes or makes privileged the testimony of a husband or wife against the other or the testimony of a health practitioner or mental health professional as to confidential communications, do not apply to evidence regarding a child's injuries or the cause of the injuries in any judicial proceeding, civil or criminal, resulting from a report pursuant to this chapter or relating to the subject matter of such a report.
This section, which seeks to abrogate privilege, must be narrowly construed. See State v. Anderson, 636 N.W.2d 26, 35-36 (Iowa 2001).
Upon review of the record we agree with Peter that his requested discovery is pertinent to allegations that he sexually abused his stepdaughters, and thus seeks "evidence regarding a child's injuries or the cause." See id. at 36-37. In addition, our supreme court has concluded that "most reports of child abuse will constitute a report under" chapter 232. Id. As a report was made in this case that related to the alleged sexual abuse of E.W. and A.W., there has been a qualifying report under chapter 232. See State v. Spaulding, 313 N.W.2d 878, 880 (Iowa 1981). The only remaining question is whether this particular dissolution proceeding is one "relating to" the alleged sexual abuse.
Previous cases applying section 232.74 have involved criminal prosecutions for the same allegedly abusive actions that were at the heart of the DHS report. Our supreme court has concluded that such criminal proceedings are ones relating to the alleged child abuse. See Anderson, 636 N.W.2d. at 32; State v. Johnson, 318 N.W.2d 417, 439 (Iowa 1982). We presume the court would reach the same result regarding a juvenile court action, such as a child in need of assistance proceeding, where the adjudication was dependent upon the alleged abuse reported to DHS. Our supreme court has also indicated that a criminal proceeding may "result from" a DHS report if such a report prompts the filing of criminal charges. See State v. Jackson, 383 N.W.2d 578, 581 (Iowa 1986). The common theme, whether the judicial proceeding results from or relates to the subject matter of the report, is that the issues to be resolved by the proceeding hinge on the veracity of the alleged actions giving rise to the report.
It is fair to say that in most instances, section 232.74 will have no application to dissolution proceedings that do not involve issues relating to child custody. As we have already mentioned, E.W. and A.W. are not Peter's children. Accordingly, he has no right to custody, care, or visitation. Moreover, the allegations of sexual abuse in Claire's petition do not have obvious relevance to issues such as division of marital property and alimony, which the district court may need to resolve when dissolving the parties' marriage. Nevertheless, the allegations of sexual abuse have become the focus of these dissolution proceedings because of the allegations in Claire's petition and her request for permanent injunctive relief. The petition for dissolution states,
[T]he Department of Human Services has instructed the petitioner to seek a no contact order and an order requiring the Respondent to vacate the homestead in lieu of a juvenile action, which they say will be filed if these applications are not made and granted.
The purpose behind chapter 232 is the protection of children, and ensuring their welfare. See Iowa Code § 232.1; State v. Cahill, 186 N.W.2d 587, 589 (Iowa 1971). We believe section 232.74 seeks to promote that purpose, in cases of alleged abuse, by elevating a full and fair hearing of the issue over statutorily created privileges. See Miller v. Marshall County, 641 N.W.2d 742, 748 (Iowa 2002) (citing Anderson, 636 N.W.2d at 35) ("In determining the particular meaning of a statutory term, we seek to find a reasonable construction that serves the statute's purpose."). In this case, the district court will be presumably be asked to evaluate disputed claims of sexual abuse, and then determine whether Claire's request for a permanent injunction should be granted. Accordingly, we conclude the district court properly determined that this proceeding is one "relating to" the subject matter of the DHS report, and thus section 232.74 should be applied to abrogate any privileges that might be asserted and proved under sections 622.9 and 622.10. Seeing no legal error by the court, or any demonstrated abuse of discretion, we affirm the district court's discovery order.
Because we conclude the district court properly decided the abrogation issue, we need not address Peter's additional contention that Claire waived any existing privilege. We do note, however, that even the limited record before us reveals evidence Claire consented to the disclosure of at least some of the communications that she now asserts are subject to privilege.