Best v. Best

• Decision Date: 17 June 1986
• Docket Number: No. 8515DC1389,8515DC1389
• Citation: 344 S.E.2d 363,81 N.C.App. 337
• Court: North Carolina Court of Appeals
• Parties: Michael Lloyd BEST and Dolly Best v. Vivian Ann Dodson BEST.

Page 363

344 S.E.2d 363

81 N.C.App. 337

Michael Lloyd BEST and Dolly Best v. Vivian Ann Dodson BEST.

No. 8515DC1389.

Court of Appeals of North Carolina.

June 17, 1986.

Cheshire & Parker by D. Michael Parker, Hillsborough, for defendant-appellant.

George P. Doyle, Chapel Hill, for third-party plaintiff-appellee Dolly Best.

No brief for plaintiff Michael Lloyd Best.

EAGLES, Judge.

This appeal presents two questions: (1) Did the court commit prejudicial error by admitting hearsay evidence? and (2) Did the court err by finding that changed circumstances justified a modification in custody? We answer both questions "No" and accordingly affirm.

I

As noted earlier, both grandmother and the psychologist testified about statements made to them by the children. Mother contends that she is entitled to have the order vacated, since this hearsay evidence was improperly admitted and without it grandmother failed to show any change of circumstances.

We begin by considering whether this argument is properly presented to this Court. Review in the Court of Appeals is limited to those exceptions set out in the record on appeal immediately following the record of the judicial action addressed by the exception. App.R. 10(a); App.R. 10(b)(1). Failure to object to the admission of evidence generally results in no judicial action and hence nothing upon which to base an exception. See for example State v. Wilson, 237 N.C. 746, 75 S.E.2d 924 (1953); State v. Smith, 50 N.C.App. 188, 272 S.E.2d 621 (1980). General, or broadside Mother relies on her exception to the following finding:

exceptions or assignments of error have always been considered ineffectual on appeal. See Hines v. Frink, 257 N.C. 723, 127 S.E.2d 509 (1962). The transcript submitted as the record of the taking of evidence in this case contains few objections and no exceptions, and mother argues a single general assignment of error on this subject. Technically, the court's admission of the hearsay evidence is not before us.

When the Grandmother was asked about what the children had said to her, Mr. Parker [counsel for mother] objected to this as hearsay. The Court overruled the objection and announced that it would hear what people alleged they heard the children say. Therefore, a large amount of evidence at this hearing was hearsay.

In interpreting findings of fact such as this one, we construe them in favor of the validity of the judgment. See Bradham v. Robinson, 236 N.C. 589, 73 S.E.2d 555 (1952) (admitting that more specific findings preferable, but affirming judgment); Phelps v. McCotter, 252 N.C. 66, 112 S.E.2d 736 (1960) (general presumption of regularity).

The fact that evidence is hearsay does not automatically render it inadmissible or incompetent. Numerous exceptions to the hearsay rule are recognized; the theory underlying the exceptions is generally that although the statements are hearsay, they possess sufficient circumstantial guarantees of trustworthiness to be admissible even though the declarant may be available to testify. See G.S. 8C-1, R.Ev. 803, Commentary. We therefore do not interpret the court's finding to necessarily mean that the hearsay evidence it heard was incompetent, merely that it was hearsay. Accordingly it appears that mother has not technically preserved an objection to the admission of the evidence.

Even assuming that mother had properly preserved objections on hearsay grounds to all statements by the children, it appears that at least some of the statements would have been admissible as statements made to a psychologist for purposes of medical diagnosis or treatment. G.S. 8C-1, R.Ev. 803(4). We reached this same result in In re Helms, 77 N.C.App. 617, 335 S.E.2d 917 (1985), holding that statements to a treating psychologist by a child victim of sexual abuse were admissible even though the child did not testify. See also State v. Spangler, 314 N.C. 374, 333 S.E.2d 722 (1985) (statements to psychiatrist admissible); see under identical federal rule United States v. Iron Shell, 633 F.2d 77 (8th Cir.1980) (admitting hearsay testimony as to narrative statements of non-testifying child victim), cert. denied, 450 U.S. 1001, 101 S.Ct. 1709, 68 L.Ed.2d 203 (1981). The psychologist testified without any objection to many of the same statements that grandmother did, and therefore they could be properly admitted. Mother does not address the psychologist's testimony in any way in her brief and has failed to properly except to its admission. See App.R. 28(b)(5); State v. Davis, 68 N.C.App. 238, 314 S.E.2d 828 (1984) (questions not argued abandoned).

Finally, the mere admission of incompetent hearsay evidence over proper objection does not require reversal. Rather, the appellant must also show that the incompetent evidence caused some prejudice. Where the court sits as finder of fact, the appellant must show that the court relied on the incompetent evidence in making its findings. Wood-Hopkins Contracting Co. v. N.C. State Ports Authority, 284 N.C. 732, 202 S.E.2d 473 (1974). Where there is competent evidence in the record supporting the court's findings, we presume that the court relied upon it and disregarded the incompetent evidence. In re Annexation Ordinance, 66 N.C.App. 472, 311 S.E.2d 898, disc. rev. denied, 310 N.C. 744, 315 S.E.2d 701 (1984). For reasons discussed infra in our consideration of the sufficiency of the evidence, and for the reasons discussed above, we conclude that under these standards of review mother has failed to demonstrate prejudicial error.

II

Mother contends that as the natural parent she is presumptively entitled to custody absent convincing proof that the best interests of the children require a different arrangement. See In re Cusson, 43 N.C.App. 333, 258 S.E.2d 858 (1979). The presumption in favor of the natural parent(s) is rebuttable, however. Wilson v. Williams, 42 N.C.App. 348, 256 S.E.2d 516 (1979). The primary concern of the trial court in awarding custody is not the rights of the parent(s), but the best interest of the child. In re Gwaltney, 68 N.C.App. 686, 315 S.E.2d 750 (1984). We note that it is not necessary for the natural parent to be found unfit for the presumption to be overcome. Comer v. Comer, 61 N.C.App. 324, 300 S.E.2d 457 (1983).

In its August 1984 order, the court made specific findings that mother knowingly allowed an unfit man access to the children, resulting in sexual abuse, and that mother took no corrective action. The court also found that mother had failed to cooperate with its directives, causing the children confusion and stress, and had not testified forthrightly about her relationship with another man or her consumption of alcohol. While the court ordered custody to the mother in August 1984, it did so recognizing that "grandmother should probably have custody for awhile." In the interest of avoiding further litigation, however, the court awarded custody to mother. It did so with the "instructions" noted above. Under the circumstances, it is clear that the original presumption in favor of mother had been substantially diminished by the findings and conditions of the August 1984 order. We are aware of no authority that each successive custody hearing starts with a "clean slate" and that the court cannot rely on the record previously generated. To the contrary, custody proceedings generally are continuing in nature, see Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971); and the court expressly referred to its prior orders in the order appealed from here.

III

Mother contends that the trial court erred in finding that changed circumstances justified a modification of custody in this case.

The trial court has wide discretion to fashion particular relief in what are often difficult child custody matters. Pruneau v. Sanders, 25 N.C.App. 510, 214 S.E.2d 288, cert. denied, 287 N.C. 664, 216 S.E.2d 911 (1975). Since the trial judge sees and hears the live witnesses and observes their demeanor, his or her exercise of discretion should not be upset absent a showing of clear abuse. Glesner v. Dembrosky, 73 N.C.App. 594, 327 S.E.2d 60 (1985); King v. Demo, 40 N.C.App. 661, 253 S.E.2d 616 (1979).

Modification of a custody decree in the discretion of the court must be supported by findings of fact that there has been a substantial change in circumstances affecting the welfare of the children. Rothman v. Rothman, 6 N.C.App. 401, 170 S.E.2d 140 (1969). The court's findings are conclusive if supported by competent evidence even if there is evidence contra or incompetent evidence in the record. See In re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1 (1969). As noted above, it is presumed that the court disregarded the incompetent evidence and relied on competent evidence. We consider the findings of changed circumstances in light of these standards.

The court found that the attitude of the children toward their mother had changed. The psychologist testified that the children's behavior had "deteriorated" and "become dramatically worse" in the past few months, and that the children were "expressing distress" over their situation with their mother. Previously the children had acted happy to be living with their mother when they came to see the psychologist. Mother did not object to the psychologist's testimony and it would probably have been admissible anyway. G.S. 8C-1, R.Ev. 803(4). The psychologist's opinion as to the general condition of the children The court found that mother allowed Daryl to live in her home. She admitted this on the stand, although she testified that Daryl moved out several weeks later. Mother continues to see Daryl. The psychologist testified that the deterioration in the children's behavior corresponded with Daryl's involvement with their mother. In light of the prior instance of sexual abuse by one of mother's boyfriends and the court's...