An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-122


Filed: 5 August 2003



v .                         Wake County
                            No. 96 CVD 11317


    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.


    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
    Judges WYNN and HUNTER concur.
    Report per Rule 30(e).

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