Glinyanay v. Tobias

• Decision Date: 23 February 2022
• Docket Number: Appellate Case No. 2019-001623,Opinion No. 5895
• Citation: 436 S.C. 137,871 S.E.2d 193
• Parties: Elena V. GLINYANAY f/k/a Elena V. Tobias, Respondent, v. William A. TOBIAS, Appellant.
• Court: South Carolina Court of Appeals

436 S.C. 137

871 S.E.2d 193

Elena V. GLINYANAY f/k/a Elena V. Tobias, Respondent,

v.William A. TOBIAS, Appellant.

Appellate Case No. 2019-001623

Opinion No. 5895

Court of Appeals of South Carolina.

Heard October 14, 2021

Filed February 23, 2022

Melinda Inman Butler, of The Butler Law Firm, of Union, for Appellant.

Kenneth Philip Shabel, of Kennedy & Brannon, P.A., and Rachel Ilene Brough, of Cate & Brough, P.A., both of Spartanburg, for Respondent.

HILL, J.:

William A. Tobias (Father) appeals a family court order granting Elena V. Glinyanay (Mother) sole custody of their two daughters, suspending Father's visitation rights, ordering Father to undergo a psychological evaluation and complete any recommended treatment, ordering Father's counselor and daughters' counselor to determine when Father's visitation could resume, and ordering Father to pay $12,500 of Mother's attorney's fees and one-half of the guardian ad litem (GAL) fees. On appeal, Father challenges the admission of out-of-court statements his daughters made to two counselors and the GAL. Common to these challenges is Father's claim that admission of the statements denied him due process by depriving him of the right to confront his daughters by cross-examination and to call his oldest daughter as a witness. Father also appeals the family court's decision to continue the suspension of his visitation and delegating the decision as to when his visitation may resume to the counselors. Finally, Father asks us to reverse the family court's rulings as to attorney's fees and GAL fees. We affirm the family court's rulings, except for the delegation order and the award of attorney's fees to Mother, which we reverse.

I. FACTS

The parties divorced in 2011. Pursuant to their divorce decree, the parties agreed to joint custody of their two daughters, "J"¹ and "S." The parties have since engaged in sporadic litigation over custody and visitation. A 2013 order approved the parties' joint custody agreement with Mother having primary placement.

In 2017, Mother brought this action seeking full custody of J and S, suspension of Father's visitation, for Father to be psychologically evaluated, and attorney's fees. Mother claimed a substantial change in circumstances, based in part on J's allegations that Father had touched her inappropriately. Father answered and counterclaimed, denying the allegations and seeking dismissal or full custody. It is important to note there has never been any finding or evidence of abuse.

In a temporary order, the family court suspended Father's visitation until J and S underwent a forensic interview. The court also appointed Amie S. Carpenter, Esquire, as the GAL. A second temporary order decreed Father's visitation would resume once approved by the girls' counselor. The court also ordered the parties to participate in a parental alienation assessment conducted by Cindy Stichnoth.

The case was tried for four days in June 2019. At the outset, the GAL and Mother moved to quash Father's subpoena of J, arguing Rule 23, SCRFC, did not require J to testify, nor was it in J's best interest to testify with her parents present. The family court granted the motion to quash, ultimately ruling at the close of testimony that it would interview J in private and off the record with the GAL present.

During the trial, Mother called Stichnoth, an expert in parental alienation, and Margaret Lee, the girls' counselor. Father objected to Stichnoth and Lee testifying as to statements J and S made during their interviews as inadmissible hearsay, but the court ruled under Rule 803(4), SCRE, it would allow the counselors to discuss the girls' statements that were specifically made for the purpose of medical diagnosis or treatment. Father objected to Lee's written report as bolstering and hearsay, but the family court admitted the report. The GAL also testified. The family court overruled Father's hearsay objection to the GAL testifying as to the girls' statements.

The family court filed an order granting Mother sole custody of J and S and continuing the suspension of Father's visitation rights. The family court also ordered Father to undergo a psychological evaluation and complete any recommended treatment. It further stated Father's counselor and Lee "shall work together to determine the best course of action to reunify Father with" J and S and "Father shall have any visitation deemed appropriate by Margaret Lee and his counselor or therapist." It further ruled: "Six (6) months after the filing of this Order, Father may petition the court to request visitation if he has not been allowed any visitation or to request an increase in any visitation approved by the counselors." Finally, the family court ordered Father to pay Mother $12,500 in attorney's fees and one-half of the GAL's fees in the amount of $5,274.69.

II. STANDARD OF REVIEW

Generally, on appeal from the family court, we review factual and legal issues de novo. Lewis v. Lewis , 392 S.C. 381, 386, 709 S.E.2d 650, 652 (2011). But we are not required to ignore the fact that the family court saw and heard the witnesses and was in a better position to evaluate their credibility and assign comparative weight to their testimony. Id. at 385, 709 S.E.2d at 651–52. The appellant bears the burden of proving the family court findings are against the greater weight of the evidence. We review the family court's evidentiary and procedural rulings for abuse of discretion. Stoney v. Stoney , 422 S.C. 593, 594 n.2, 813 S.E.2d 486, 486 n.2 (2018).

III. DISCUSSION

1. J's and S's Statements, Hearsay, and Calling J as a Witness

Over Father's objection, Stichnoth, Lee, and the GAL testified about numerous statements J and S made to them concerning things Father said and did. Father contends these statements were hearsay, and he was denied due process because he could not cross-examine the girls concerning the statements and the court quashed his subpoena of J.

A. Hearsay

Stichnoth's and Lee's testimony about what the girls said was admissible based on the hearsay exception for statements made for the purpose of medical diagnosis and treatment found in Rule 803(4), SCRE. South Carolina common law long recognized that what a patient seeking treatment says to his doctor about his condition is admissible. Grey v. Young , 16 S.C.L. 38, 41 (Harp. 1823) ; Gentry v. Watkins-Carolina Trucking Co. , 249 S.C. 316, 323, 154 S.E.2d 112, 116–17 (1967). The exception extended to statements regarding mental health.

Thompson v. Aetna Life Ins. Co. , 177 S.C. 120, 180 S.E. 880, 883–84 (1935). However, the exception covered only those statements the doctor reasonably relied upon in forming his professional opinion. State v. Brown , 286 S.C. 445, 446–47, 334 S.E.2d 816, 816–17 (1985). When the South Carolina Rules of Evidence arrived in 1995, the exception emerged as Rule 803(4), SCRE, which authorizes the admissibility of:

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court's discretion.

To be admissible under Rule 803(4), the statement must be (1) made for the purpose of and be reasonably pertinent to medical diagnosis or treatment; (2) describe the patient's medical history, past or present symptoms, pain or sensations, or the inception or general character of their cause or external source; and (3) reasonably relied upon by the medical professional. See State v. Simmons , 423 S.C. 552, 564–65, 816 S.E.2d 566, 573 (2018) (holding physician's testimony inadmissible hearsay to the extent it recounted statements by the minor patient concerning the identity of his abuser that were not made for the purposes of medical treatment or reasonably pertinent to it); State v. Burroughs , 328 S.C. 489, 501, 492 S.E.2d 408, 414 (Ct. App. 1997) (nurse's testimony that rape victim told her defendant had asked if he could hug victim before he assaulted her was not admissible under Rule 803(4), as statement "in no way can be viewed as ‘reasonably pertinent’ to victim's diagnosis or treatment").

Statements made for purposes of medical diagnosis or treatment are exempt from the rule against hearsay because of their general inherent trustworthiness: no sensible person genuinely seeking a doctor's help would speak falsely about his perception of his condition. The reliability of such statements "is assured by the likelihood that the patient believes that the effectiveness of the treatment depends on the accuracy of the information provided to the doctor, which may be termed a ‘selfish treatment motivation.’ "

2 McCormick on Evidence § 277 (8th ed. 2020) (footnotes omitted). The admissibility of patient statements under Rule 803(4) mirrors Rule 703's approval of an expert's use of hearsay in forming her opinions. See Rule 703, SCRE (authorizing expert to base her opinion testimony on "facts or data" that may not be admissible as long as they are of a type reasonably relied upon by experts in forming opinions).

Whether Rule 803(4), SCRE, covers the admissibility of a statement made to a therapist or mental health professional (rather than a medical doctor) does not appear to have been addressed in South Carolina. Cf. Howle v. PYA/Monarch, Inc. , 288 S.C. 586, 591, 594, 596, 344 S.E.2d 157, 159, 161–62 (Ct. App. 1986) (allowing psychologist expert witness to offer opinion testimony based in part on inadmissible hearsay as Rule 703, SCRE, now permits). The text of the rule does not require that the statement even be made to a medical provider. Indeed, the advisory committee notes to Federal Rule 803(4) explain that the statement "need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of...