Hamilton v. Hamilton

• Decision Date: 16 May 1989
• Docket Number: No. 8810DC676,8810DC676
• Citation: 379 S.E.2d 93,93 N.C.App. 639
• Court: North Carolina Court of Appeals
• Parties: Harold G. HAMILTON v. Deborah E. HAMILTON (Howard).

Page 93

379 S.E.2d 93

93 N.C.App. 639

Harold G. HAMILTON v. Deborah E. HAMILTON (Howard).

No. 8810DC676.

Court of Appeals of North Carolina.

May 16, 1989.

Yeargan, Thompson & Mitchiner by W. Hugh Thompson, Raleigh, for plaintiff-appellant.

Purser, Cheshire, Parker, Hughes & Manning by John H. Parker and Patricia A. Moylan, Raleigh, for defendant-appellee.

GREENE, Judge.

In this civil action plaintiff, Harold G. Hamilton, appeals from an order of the trial court awarding defendant, Deborah E. Hamilton, the sole custody of the parties' minor child.

The issue of custody came before the trial court on 10 November 1987 pursuant to defendant's motion in the cause alleging a "substantial and material change in circumstances that materially affects the well being of the child." The history of this custody dispute reveals that the first of several custody orders was entered on 20 January 1984 and granted primary custody of the minor child to the plaintiff, with "reasonable and liberal visitation privileges" to the defendant. After motions in the cause, the trial court again on 11 June 1985 and 28 February 1986 continued primary custody with the plaintiff.

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The plaintiff's assignments of error present for our review the following issues: I) whether the trial court erred in denying plaintiff's motion to dismiss made at the end of the defendant's evidence; II) whether the findings are supported by competent evidence; and III) whether the findings of fact support the conclusion of the trial court that there existed a substantial change of circumstances.

I

Plaintiff's motion at the end of the defendant's evidence, to dismiss the defendant's motion for change in custody, is treated as a Rule 41(b) motion for involuntary dismissal. N.C.G.S. Sec. 1A-1, Rule 41(b) (1983) (dismissal granted if upon the facts and the law plaintiff has shown no right to relief). The question presented in a Rule 41(b) motion is "whether the ... evidence, taken as true, would support findings of fact upon which the trier of fact could properly base a judgment for the" party with the burden of proof. Woodlief v. Johnson, 75 N.C.App. 49, 53, 330 S.E.2d 265, 268 (1985). The defendant, here the party moving for a change in custody, has the burden of showing a substantial change of circumstances. Searl v. Searl, 34 N.C.App. 583, 587, 239 S.E.2d 305, 308 (1977).

As the plaintiff presented evidence after his motion to dismiss was denied, he has waived any right to appeal from the denial of that motion. 9 C. Wright & A. Miller, Federal Practice and Procedure Sec. 2371, p. 221 (1971) (by presenting evidence, a party moving to dismiss waives his right to appeal from the denial of the motion).

II

The trial court entered some sixty-eight different findings of fact and the plaintiff argues that fifty-three of them are "not supported by properly admissible evidence."

A trial court's "findings of fact modifying a child custody Order are conclusive on appeal if supported by competent evidence, ... even though there is evidence to the contrary" (citation omitted). Vuncannon v. Vuncannon, 82 N.C.App. 255, 259, 346 S.E.2d 274, 276 (1986). Competent evidence in a custody modification case includes only evidence of circumstances (1) existing at the time of the prior custody decree which "[was] not disclosed to the court" and (2) other pertinent circumstances occurring since the entry of the prior custody decree. See Wehlau v. Witek, 75 N.C.App. 596, 598, 331 S.E.2d 223, 225 (1985).

A

Plaintiff first contends the trial court considered incompetent evidence when it reconsidered evidence which had earlier been presented to the court when the court entered its custody orders in January 1984, June 1985, and February 1986. However, in only one instance did the plaintiff object, except and assign error to any of defendant's evidence on the ground that "it had been a subject of a prior court custody determination." Specifically, the plaintiff objected to the introduction of a written psychological summary by Dr. Rosalind L. Heiko (Dr. Heiko), a licensed psychologist. Dr. Heiko's written summary was used as the basis of an opinion offered by Dr. Paula Clarke, a licensed psychologist who did testify at the trial. Dr. Heiko did not testify. Dr. Heiko's psychological summary related to an evaluation performed by Dr. Heiko on the minor child from 5 September 1985 through 4 November 1985, at a time when earlier custody litigation was pending. It also appears from the record that a portion of Dr. Heiko's psychological summary was referred to in an earlier verified motion for change of custody which was filed on 8 December 1985. Therefore, it appears from the record that Dr. Heiko's report existed at the time of a prior custody decree and was disclosed to the court. Nonetheless, we find no error as the trial court did not admit Dr. Heiko's report in as substantive evidence but only for the limited purpose of representing the basis of the opinion of Dr. Paula Clarke.

B

The plaintiff next contends the trial court erred in allowing Dr. Heiko's report into evidence as representing the basis of the opinion of Dr. Clarke. Rule 703 of our Rules of Evidence permits an expert to base his opinion on "facts or data" "made known to him at or before the hearing" and the "facts or data need not be admissible in evidence" "[i]f of a type reasonably relied upon by experts in the particular field." N.C.G.S. Sec. 8C-1, Rule 703 (1988). As Dr. Heiko did not testify, the introduction of his report into evidence, even as non-substantive evidence, is permissible only if Dr. Heiko's report was "of a type reasonably relied upon by experts" in the field of psychology. When a party objects to the testimony of an expert on the ground that he is using "facts or data" not "of a type reasonably relied upon by experts in the particular field," the trial court must make a preliminary determination, pursuant to N.C.G.S. Sec. 8C-1, Rule 104(a) as to "whether the particular underlying data is of a kind that is reasonably relied upon by experts in the particular field." 3 J. Weinstein & M. Berger, Weinstein's Evidence Sec. 703, p. 703-16 (1988); N.C.G.S. Sec. 8C-1, Rule 104(a) (1988) ("Preliminary questions concerning ... the admissibility of evidence shall be determined by the court"). This determination does not necessarily require a hearing outside the presence of the jury as "[m]uch evidence on preliminary questions ... may be heard by the jury with no adverse effect." N.C.G.S. Sec. 8C-1, Rule 104, comment. Whether or not to hold a hearing outside the presence of the jury on this matter is left to the discretion of the judge "as the interests of justice require." Id. However, "[h]earings on the admissibility of confessions or other motions to suppress evidence in criminal trials in Superior Court" must be held outside the presence of the jury. N.C.G.S. Sec. 8C-1, Rule 104(c) (1988). "The primary consideration of the judge in deciding whether to remove the jury is the potential for prejudice inherent in the evidence which will be produced by parties on the preliminary question." 1 J. Weinstein & M. Berger, Sec. 104, p. 104-74 (1988).

The record indicates the plaintiff only made a general objection to the use and introduction of Dr. Heiko's written summary and did not assert any specific ground for the objection. See N.C.G.S. Sec. 8C-1, 103(a)(1) (1988) (objection must clearly present the alleged error). Furthermore, plaintiff requested no voir dire and offered no evidence or argument on the question of whether Dr. Heiko's report was "of a type reasonably relied upon by experts" in the field of psychology. N.C.G.S. Sec. 8C-1, Rule 705 (1988) (expert can be required before stating his opinion to disclose "underlying facts or data on direct examination or voir dire "). Therefore, the plaintiff has waived any error in the use of Dr. Heiko's report. State v. Catoe, 78 N.C.App. 167, 168, 336 S.E.2d 691, 692 (1985), disc. rev. denied, 316 N.C. 380, 344 S.E.2d 1 (1986) ("[e]rror may not be argued on appeal where the underlying objection fails to present the nature of the alleged error to the trial court"). In any event, statements by one treating psychologist to another are presumptively reliable and considered to be of a type reasonably relied upon by experts in the field of psychology. See Donavant v. Hudspeth, 318 N.C. 1, 26, 347 S.E.2d 797, 812 (1986) ("statements by one treating physician to another are inherently reliable"). Accordingly, we find the trial court committed no error in admitting this report for the limited purpose of showing the basis of Dr. Clarke's opinion.

C

The plaintiff next contends the trial court erred in admitting the following testimony of Dr. Clarke:

Q. Who has been punishing him, can you answer that part of it?

A. I don't have that information directly from Ryan. You know, what I am told is, and if this is, you know, this is only my opinion at this point because I don't have direct information from Ryan on this score. It appears--

. . . . .

A. It appears that he's fearful of his father punishing him.

The plaintiff argues this testimony was inadmissible hearsay. However, on cross-examination the same witness, without objection, testified that "the child was fearful of his father punishing him." "Where evidence is admitted over objection, and the same evidence has been previously admitted or is later admitted without objection, the benefit of the objection is lost." State v. Whitley, 311 N.C. 656, 661, 319 S.E.2d 584, 588 (1984). Therefore, the plaintiff has waived his right to raise on appeal his objection to the evidence.

D

The plaintiff next contends the trial court erred in admitting over objection the following testimony of Dr. Clarke:

A. In my opinion, Debbie is better able to meet those needs because she does have the capacity to empathize and see things from Ryan's point of view. She also has the ability to recognize when she is having trouble doing...