Appeal by plaintiff from orders entered 8 February 2001 and 14
March 2001 by Judge Paul G. Gessner in Wake County Superior Court.
Heard in the Court of Appeals 13 November 2002.
ELLIS & WINTERS, LLP, by Matthew W. Sawchak and Brian J.
Schoolman, for plaintiff appellant.
GAILOR & ASSOCIATES, P.L.L.C., by Kimberly A. Wallis and Jaime
L. Humphries, for defendant appellee.
TIMMONS-GOODSON, Judge.
David T. Buckingham (“plaintiff”) appeals from orders of the
trial court granting custody of Anne Elizabeth Buckingham (“the
minor child”) to Cynthia B. Buckingham (“defendant”), denying his
motions for a new trial, to alter or amend the custody order, and
for specific findings of fact and conclusions of law. For the
reasons stated herein, we affirm the orders of the trial court.
The facts pertinent to the instant appeal are as follows:
Plaintiff and defendant were married in 1993 and one child was born
to the union in 1995. In 1998 plaintiff and defendant divorced.
On 20 January 1998, the trial court signed a consent order grantingjoint legal custody to plaintiff and defendant, with primary
physical custody granted to defendant and secondary and specified
visitation rights granted to plaintiff.
On 3 December 1999, plaintiff filed a motion to modify the
1998 consent order and requested primary custody of the minor
child. In his motion to modify, plaintiff asserted that (1)
defendant had deteriorated psychologically, (2) that defendant was
attempting to limit his contact with the minor child, and (3) that
the minor child was experiencing health problems due to defendant's
behavior. Therefore, plaintiff asserted that there were changes in
circumstances which required a change of custody.
On 4 April 2000, plaintiff filed a motion to compel the
production of defendant's medical and mental health records from
the period of October 1997 to the date of production. On 6 April
2000, defendant filed a cross-motion to modify custody and
requested that the parties continue joint legal custody. On 20
April 2000, plaintiff's motion to compel was denied and the trial
court found that the psychological, psychiatric, medical and drug
records or treatments of the parties after the original consent
order “should not be the subject of discovery or testimony.”
The matter was heard by the trial court in September 2000. At
trial, plaintiff attempted to question witnesses about various tape
recordings allegedly made by defendant. The trial court, ex mero
motu, entered an order striking any reference to the recordings,
and precluded further testimony related to the recordings. After a full evidentiary hearing, the trial court made the
following findings of facts:
19. Since entry of the Consent Order for
Permanent Custody the exchanges of the minor
child between the Plaintiff and Defendant have
become increasingly difficult. The evidence
shows that the Plaintiff berates the Defendant
during these exchanges leading to upsetting
outbursts in the presence of the minor child.
The hostility directed at the Defendant by the
Plaintiff and his demonstrations of anger have
adversely affected the minor child. The
Defendant's testimony regarding the difficulty
of the exchanges and the conduct of the
Plaintiff was corroborated by Mrs. Gina
Tessener and other neighbors, The Court finds
the testimony of these witnesses credible.
20. Since entry of the Consent Order for
Permanent Custody, the health of the minor
child has worsened including severe
constipation, encopresis, eczema and pigment
loss secondary to eczema, bedwetting, anger
and sadness. These health conditions appear
to be a result of the conflict-ridden custody
situation resulting from the custody and
visitation arrangements existing under the
Consent Order for Permanent Custody. The
Defendant, a nurse, is better suited to
provide the necessary consistent care and
nurturing for the minor child to relieve these
physical problems.
21. The minor child has demonstrated
substantial resistance to visitation with the
Plaintiff during custodial exchanges. Upon
returns from visitation with the Plaintiff,
the minor child's physical symptoms as set
forth above are often aggravated.
22. The Plaintiff has demonstrated
inflexibility, unreasonableness and
uncooperativeness towards the Defendant in
regard to the exchanges and issues concerning
the minor child. The Plaintiff's conduct in
regard to a ballet recital for [the minor
child] and his manner of dealing with the
Defendant are representative of his behavior.
This ballet recital incident was corroboratedby Mrs. Gina Tessener. The Court finds her
testimony credible.
23. The Plaintiff has unnecessarily
exacerbated the already deteriorating
custodial/visitation situation by acting
unnecessarily adversarial in his use of
couriers to deliver messages to the Defendant
and involvement of law enforcement officers
during custody/visitation exchanges.
24. Since entry of the Consent Order for
Permanent Custody, the Defendant has made
efforts to improve the exchanges of the child
between herself and the Plaintiff including
but not limited to the following: the
Defendant has had [the minor child] outside
and ready to go with the Plaintiff when he
arrived to pick her up, created a special
calendar with “daddy ducks” and “mommy ducks”
to help her daughter anticipate when the
exchanges would occur and used a book called
The Kissing Hand recommended by a therapist to
help ease the transitions for [the minor
child].
25. Despite the Defendant's preference for
[the minor child] to attend public school, at
the Plaintiff's request, and in an effort to
be cooperative, the Defendant agreed to the
enrollment of [the minor child] in . . ., a
private school in Raleigh beginning in the
Fall of 1999.
26. The Plaintiff has a history of failing
to provide vital information concerning [the
minor child] to the Defendant in a timely
manner with regard to injuries she sustained
while in his care. The Plaintiff also
intentionally excluded the Defendant from
school contact lists and directories.
27. The Defendant offered the names of
multiple therapists to work with the Plaintiff
and Defendant on parenting issues with whom
the Plaintiff declined to participate.
. . . .
29. The Defendant is better suited and more
willing to foster a positive relationship
between the minor child and the Plaintiff thanthe Plaintiff is suited or willing to foster a
positive relationship between the Defendant
and the minor child.
30. The minor child's health and wellbeing
have suffered and the child has experienced
substantial stress under the custody and
visitation arrangements made pursuant to the
Consent Order for Permanent Custody. The
Plaintiff's actions in regard to the Defendant
and minor child have had a detrimental impact
on the child. The minor child is in need of a
stable home base with her mother, the
Defendant including more “down” time with the
Defendant who provides a calm and nurturing
environment beneficial to [the minor child].
. . . .
33. The Court had the opportunity to observe
and hear the parties and their witnesses and
determine their credibility. The Defendant
appeared the more credible witness to the
Court than the Plaintiff.
Based on the above-stated findings, the trial court then entered
the following conclusions of law:
2. The Court should grant the Defendant's
Motion to Modify in that there has been a
substantial change of circumstances adversely
affecting the welfare of the minor child which
requires that the Consent Order for Permanent
Custody entered January 20, 1998 be modified
to effect the best interests of the minor
child, . . . . The award of custody to the
Defendant will best promote the interest and
welfare of the minor child, . . . . The Court
should deny the Plaintiff's Motion to Modify
Custody.
3. The best interests of the minor child
require that the Defendant be granted
exclusive custody of the minor child and the
Plaintiff visitation rights with the minor
child as set forth in . . . this Order. The
Plaintiff's request for joint custody of the
minor child should be denied in that an award
of joint custody will not best promote the
interest and welfare of the child.
4. This Order for Modification of Permanent
Custody should supercede and modify the
Consent Order for Permanent Custody entered
January 20, 1998 which should therafter be
null and void and of no further force and
effect.
Having so concluded, the trial court entered an order awarding
defendant exclusive legal custody of the minor child, and granting
visitation rights to plaintiff. Thereafter, plaintiff filed
motions to alter or amend the order, for a new trial and for the
court to make specific additional findings of fact and conclusions.
Plaintiff's motions were denied. Plaintiff appeals.
______________________________________________
On appeal, plaintiff argues that the trial court erred by (1)
denying his motion to compel; (2) excluding testimony regarding
various tape recordings; and (3) ordering exclusive custody of the
minor child to defendant. For the reasons stated herein, we affirm
the orders of the trial court.
In his first assignment of error, plaintiff argues that the
trial court abused its discretion by failing to compel defendant's
medical and psychological records and failing to review the records
in camera. We disagree.
“Whether or not to grant a party's motion to compel discovery
is in the sound discretion of the trial court and will not be
disturbed absent an abuse of discretion.”
Belcher v. Averette, 152
N.C. App. 452, 455, 568 S.E.2d 630, 633 (2002). “'An abuse of
discretion occurs only when a court makes a patently arbitrary
decision, manifestly unsupported by reason.'”
N.C. State Bar v.
Gilbert, 151 N.C. App. 299, 306, 566 S.E.2d 685, 689 (2002)(quoting
Buford v. General Motors Corp., 339 N.C. 396, 406, 451
S.E.2d 293, 298 (1994)). Whether to conduct an in camera
inspection of documents rests in the sound discretion of the trial
court.
Midgett v. Crystal Dawn Corp., 58 N.C. App. 734, 736, 294
S.E.2d 386, 387 (1982).
Under the rules of discovery, unless otherwise limited by
order of the court, a party may obtain discovery concerning any
unprivileged matter as long as relevant to the pending action and
reasonably calculated to lead to the discovery of admissible
evidence.
N.C. Gen. Stat. § 1A-1, Rule 26(b)(1) (2001). However,
if the matter of which discovery is sought is privileged, even if
relevant, it is not discoverable, “unless the interests of justice
outweigh the protected privilege.”
Shellhorn v. Brad Ragan, Inc.,
38 N.C. App. 310, 314, 248 S.E.2d 103, 106 (1978).
North Carolina General Statutes §§ 8-53 and 8-53.3 set forth
the requirements for establishing the physician-patient and
psychologist-patient privilege. N. C. Gen. Stat. §§ 8-53, 8-53.3
(2001). The sections are to be read
in pari materia.
See In Re
Mental Health Center, 42 N.C. App. 292, 256 S.E.2d 818,
cert.
denied, 298 N.C. 297, 259 S.E.2d 298 (1979). Thus, the physician-
patient privilege is extended to the psychologist-patient context.
The two statutory privileges are qualified ones, and the judge may
compel disclosure of privileged information if he finds, in his
discretion, that “it is necessary for a proper administration of
justice.”
State v. Mayhand, 298 N.C. 418, 429, 259 S.E.2d 231, 238
(1979);
see State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988). In order to successfully challenge the ruling of the trial court it
must be demonstrated that the judge's actions are manifestly
unsupported by reason.
White v. White, 312 N.C. 770, 777, 324
S.E.2d 829, 833 (1985). Thus, we must afford great deference to
the trial court's discretion. The party objecting to discovery of
privileged information has the burden to raise the objection in the
first instance and has the burden of establishing the existence of
the privilege.
Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d
620, 624 (1992). “A patient may expressly or impliedly waive his
physician-patient privilege during discovery and at trial.”
Id.
The facts and circumstances of a particular case determine whether
a patient's conduct constitutes an implied waiver, and a patient
impliedly waives his privilege when he does not object to requested
disclosures of the privileged information.
See id.
In the instant case, we initially note that the record is
devoid of any evidence which would indicate that defendant waived
the physician-patient or psychologist-patient privilege during
discovery or at trial. Plaintiff has failed to show that the trial
court abused its discretion in determining that the disclosure of
defendant's privileged information was not necessary for the
administration of justice in this matter. According to plaintiff,
defendant's records were essential to show a change of
circumstances and the effects of these changes on the minor child.
Plaintiff then proceeds to make broad allegations regarding the
deterioration of defendant's mental health and in order to
substantiate his allegations, he requests defendant's medical andmental health records. Plaintiff's request for defendant's records
was clearly a fishing expedition in order to find support for or
prove his unsubstantiated allegations. Given these set of facts,
defendant's records are clearly protected by North Carolina General
Statutes § 8-53, and plaintiff fails to demonstrate that the trial
court's denial of his motion to compel the records was unsupported
by reason. Therefore, we hold that the trial court did not abuse
its discretion by refusing to breach the confidential relationship
between defendant and her physician by compelling disclosure.
Plaintiff's first assignment of error is overruled.
By his second assignment of error, defendant argues that the
trial court improperly excluded testimony related to tape
recordings made by defendant. We disagree.
Rule 103 of the North Carolina Rules of Evidence provides in
part that:
error may not be predicated upon a ruling
which admits or excludes evidence unless a
substantial right of the party is affected and
. . . in case the ruling is one excluding
evidence, the substance of the evidence was
made known to the court by offer or was
apparent from the context within which
questions were asked.
N.C. Gen. Stat. § 8C-1, Rule 103(a)(2) (2001). When a party
objects to “the admissibility of testimony or to the competency of
a witness to give that, or any, testimony, the significance of the
excluded evidence must be made to appear in the record if the
matter is to be heard on review.”
Currence v. Hardin, 296 N.C. 95,
100, 249 S.E.2d 387, 390 (1978);
see N.C. Gen. Stat. § 1A-1, Rule43(c) (2001). Therefore, “a showing of the essential content or
substance of the witness's testimony is required before this Court
can determine whether the error in excluding the evidence is
prejudicial.”
Currence, 296 N.C. at 100, 249 S.E.2d at 390.
In the present case, plaintiff attempted to cross-examine Gina
Tessener and defendant regarding alleged tape recordings made by
defendant. Defendant objected to this line of questioning numerous
times by asserting Rule 403. Thereafter, the court,
ex mero motu,
excluded all evidence related to the tape recordings including any
previous testimony regarding the recordings. The record reveals
that plaintiff failed to make a competent offer of proof as to the
significance of the excluded testimony. Plaintiff offered several
questions which he would ask had he been allowed to proceed with
questioning related to the tape recordings; however, plaintiff's
questions either related to when the recordings were made or
whether the parties knew defendant was tape recording certain
conversations. Plaintiff's questions failed to indicate the
testimony the witnesses would give or the substance of the
evidence. Therefore, this Court cannot properly determine that
defendant was prejudiced by the trial court's exclusion of
testimony related to the tape recordings. As stated
supra, this
Court can only determine that an abuse of discretion has occurred
when the trial court makes a decision manifestly unsupported by
reason.
N.C. State Bar, 151 N.C. App. at 306, 566 S.E.2d at 689.
Here, we are unable to conclude that the trial court's action inexcluding testimony related to the tape recordings was unsupported
by reason.
In his last assignment of error, plaintiff argues that the
trial court erred in granting exclusive custody of the minor child
to defendant. Specifically, plaintiff contends that there was not
a motion before the trial court to grant custody of the minor child
to defendant and that the trial court's order was not supported by
proper findings of fact and conclusions of law. We disagree.
“An order of a court of this State for support of a minor
child may be modified or vacated at any time, upon motion in the
cause and a showing of changed circumstances by either party or
anyone interested[.]” N.C. Gen Stat. § 50-13.7 (2001). The party
seeking a modification of a child custody order bears the burden of
proving that there has been a substantial change of circumstances
and that the change affects the welfare of the child.
Evans v.
Evans, 138 N.C. App. 135, 139, 530 S.E.2d 576, 579 (2000). In
order to meet this burden, the party seeking the modification must
show “that circumstances have changed which affect the welfare of
the child.”
Bunting v. Bunting, 100 N.C. App. 294, 298, 395 S.E.2d
713, 716 (1990). “The determination of what 'will best promote the
interest and welfare of the child,' that is, 'what is in the best
interest of the child,' is a conclusion of law, and this conclusion
must be supported by findings of fact as to the characteristics of
the parties competing for custody.”
Hunt v. Hunt, 112 N.C. App.
722, 728, 436 S.E.2d 856, 860 (1993) (quoting
Steele v. Steele, 36
N.C. App. 601, 604, 244 S.E.2d 466, 468 (1978)). In the case at bar, plaintiff filed a motion requesting that
the court award him primary custody of the minor child. In
response to plaintiff's motion, defendant filed a motion requesting
that the parties continue joint custody. Therefore, there was a
proper motion before the court regarding the custody of the minor
child. Accordingly, we conclude that by filing motions requesting
the trial court to determine custody of the minor child, the
plaintiff was on notice that the issue of custody was before the
court. A trial court may modify child custody on a motion that
gives the opposing party notice that a change in custody is being
sought.
See Benedict v. Coe, 117 N.C. App. 369, 376-77, 451 S.E.2d
320, 324 (1994);
see also Clayton v. Clayton, 54 N.C. App. 612,
614, 284 S.E.2d 125, 127 (1981).
Moreover, in the order granting defendant exclusive custody,
the trial court made numerous findings of fact detailing
plaintiff's disruptive behavior. On appeal, findings of fact made
by the trial court are conclusive if there is evidence to support
them.
Hunt v. Hunt, 85 N.C. App. 484, 488, 355 S.E.2d 519, 521
(1987). Here, the trial court found that plaintiff's
“unreasonable, inflexible, and adversarial behavior” toward
defendant during custodial exchanges caused the minor child's
“health and well-being” to suffer, and had a “detrimental impact”
on the minor child. Based on those findings the trial court
ordered exclusive custody of the minor child to defendant. A
review of the record reveals that there was evidence before the
trial court tending to show that the minor child was experiencinghealth issues, which were magnified during visitation and custody
exchanges with plaintiff. There was further evidence that
defendant had suggested, and plaintiff had declined, to seek
professional help in order to improve various parenting issues. We
conclude that there was ample evidence before the trial court to
support its conclusion that a change of custody was warranted.
Therefore, plaintiff's final assignment of error is overruled.
For the reasons contained herein, the orders of the trial
court are hereby
Affirmed.
Judges WYNN and HUNTER concur.
Report per Rule 30(e).
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