Spencer v. Spencer

• Citation: 70 N.C.App. 159,319 S.E.2d 636
• Decision Date: 04 September 1984
• Docket Number: No. 8310DC965,8310DC965
• Parties: Joan Dunlow SPENCER v. William Riley SPENCER.
• Court: Court of Appeal of North Carolina (US)

Page 636

319 S.E.2d 636

70 N.C.App. 159

Joan Dunlow SPENCER v. William Riley SPENCER.

No. 8310DC965.

Court of Appeals of North Carolina.

Sept. 4, 1984.

Manning, Fulton & Skinner by John B. McMillan and Robert S. Shields, Jr., Raleigh, for plaintiff-appellee.

BECTON, Judge.

Defendant husband appeals from a final judgment in a contested divorce action. Principally because the trial court's findings relative to alimony are insufficient, we reverse and remand.

THE FACTS

Plaintiff Joan D. Spencer (wife) and defendant William R. Spencer (husband) married in 1966. Husband had recently begun a dental practice, while wife worked as a secretary. In 1968 and 1970, children were born of the marriage, and wife ceased work outside the home. Husband became increasingly involved with his practice and associated professional activities, as well as a succession of business ventures. As a result, tension developed in the marriage: wife in particular felt that husband spent too much time away from the family and paid too little attention to her. The couple underwent counselling, but this proved ineffective. The family continued to maintain a comfortable suburban lifestyle, however, with a large house, a beach cottage, club memberships, private school for the children, and more.

In 1981, after a period of increasing concern on wife's part about husband's lack of affection and about family finances, a dispute arose over a $70,000 certificate of deposit. The certificate represented the proceeds of entireties property. Husband, who controlled family finances, originally had only his name put on it. Wife successfully insisted on having her name put on the certificate and then took and retained physical possession thereof, despite husband's demands for its negotiation.

Shortly thereafter, wife filed suit for divorce from bed and board, custody of the two children, temporary and permanent alimony and child support, equitable distribution, and counsel fees. Husband answered seeking divorce from bed and board, custody, and equitable distribution.

On 2 July 1982 the District Court entered an order pendente lite awarding wife temporary custody with visitation rights, temporary alimony and child support, and enjoining transfer of certain marital assets.

The cause came on for trial in two parts. The first was before a jury on the "fault" issues of whether husband had offered indignities to the person of wife and whether husband had willfully failed to provide wife necessary subsistence. Wife offered evidence of various indignities by husband, including aloofness, excessive criticism and regimentation of their marriage, denial of sexual relations, relationships with other women, threats of financial ruin, and general lack of caring. Husband offered contrary evidence of wife's excessive criticism, alcoholism, irrational jealousy and of his continuing love and concern for wife. The jury found that husband had in fact offered indignities so as to render wife's condition intolerable and her life burdensome, although it found that husband had not willfully failed to support her.

A bench trial followed on the issues of permanent alimony, child support and counsel fees. Both parties presented evidence regarding their living expenses, property, and income. The court awarded wife the family residence, custody of the children, $2,800 per month in alimony and child support, and other relief. In addition, the trial court ordered husband to pay approximately $30,000 in counsel fees. It also continued in effect all portions of the order pendente lite which did not conflict with the final order, which resulted in continuing the injunction against disposition of marital property. No equitable distribution of the marital property was ordered, nor was the issue set for further hearing.

Husband thereafter moved for relief from the injunctive and visitation provisions of the order pendente lite. The court ruled that it could not modify the order pendente lite since it had been adopted into the final order from which husband had taken a pending appeal.

Husband now appeals from the two trials and the subsequent order of the court. Further facts are set out as necessary in the opinion.

THE JURY TRIAL

I

As his principal assignment of error to the jury trial, husband contends that the trial court abused its discretion and showed undue favoritism during the course of his cross examination of wife. Husband catalogues numerous acts and omissions of the trial judge, arguing that the numbers alone show favoritism, as well as pointing out several comments by the judge, all of which he contends improperly constituted an expression of an opinion on the merits.

We have reviewed the transcript carefully and find no prejudicial judicial conduct when we consider, as we must, all the facts and circumstances of the case. See State v. Holden, 280 N.C. 426, 185 S.E.2d 889 (1972). The record shows that counsel for husband subjected wife to an exhaustive and aggressive examination. Not surprisingly, considering the issues at trial, this resulted in confused and emotional answers on her part. At no time, however, did the trial judge express any sympathy for wife's emotional state in the presence of the jury. Only once did the trial judge suggest a recess to allow wife to regain her composure. Considering the length of time wife was on the stand--260 pages of transcript taken over three days--and the nature of the case, we do not find any error in the "score card" presented by husband.

Nor do the specific errors alleged constitute reversible error. Husband stresses one exchange, during which the trial judge required his counsel to define "jealousy," as indicative of the judge's protectionism of the wife and irritation with the husband. However, the exchange came only after defense counsel had repeatedly asked wife whether she was jealous, wife had already attempted to answer the question, and had in fact substantially answered it, and after wife had previously expressed her uncertainty as to what others' descriptions of her as "jealous" meant. We discern no favoritism.

The other major exchange cited by husband occurred at the end of cross examination when wife responded to defense counsel's persistent questioning regarding whether or not she had faults by asking, "What kind of faults do you want?" Defense counsel replied, "I only wanted the truth, but--" and ended her questioning. In sustaining an objection and allowing a motion to strike counsel's remark, the judge commented, "The jury is not to consider that law comment by counsel. The witness is under oath and the court assumes her testimony is truthful." Defense counsel apologized; the trial judge then invited defense counsel to argue, in any appropriate way, any reasons to think the witness was not being truthful. Husband claims prejudicial error, arguing that the trial judge unfairly expressed an opinion as to the credibility of the witness. We disagree.

We do not approve of the trial judge's remark, of course, but not every ill-advised comment constitutes prejudicial error. State v. Holden. In context the comment about assumed truthfulness appears to be nothing more than an indication of the trial court's willingness to take defense counsel's insinuation of perjury at face value. The statement is entirely consistent with the longstanding and sacred function of oaths as guarantees of truthfulness subject to punishment by the laws of God and man. See Shaw v. Moore, 49 N.C. (4 Jones) 25 (1856). We think the jury understood it as such especially in light of the trial court's explicit jury instruction later on, which emphasized to the jury their role as judges of the credibility of the witnesses. We note that the trial judge in no way "unequivocally endorsed" the credibility of the witness. See In re Will of Holcomb, 244 N.C. 391, 93 S.E.2d 454 (1956).

The cases cited generally by husband do not compel a finding of prejudicial error. In Worrell v. Hennis Credit Union, 12 N.C.App. 275, 182 S.E.2d 874 (1971), unlike here, the trial judge, repeatedly and on his own motion, sustained objections to and struck one side's evidence, in a persistently antagonistic manner. And in In re Will of York, 18 N.C.App. 425, 197 S.E.2d 19, cert. denied, 283 N.C. 753, 198 S.E.2d 729 (1973), the trial judge erred when he instructed the jury that they could change the answers to two issues already answered, after the jury had been in recess over the weekend, without cautioning them that he expressed no opinion theory. No such extenuating circumstances appear in this case. In closing our discussion of this assignment of error, we observe that the trial judge has broad discretionary power to control the trial of cases before a jury. Miller v. Greenwood, 218 N.C. 146, 10 S.E.2d 708 (1940). Husband has failed to show any abuse of that discretion, and this assignment of error is therefore overruled.

II

Shortly after the original filing of the Complaint, husband and wife attended marriage counselling together. Wife called the counsellor, a psychiatrist, to testify regarding his general evaluation of the marriage. Husband now contends that the testimony was privileged and that, therefore, the trial court erred in admitting it. See N.C.Gen.Stat. § 8-53 (Supp.1983) (physician-patient privilege). However, he entirely failed to object on these grounds at trial. It is well-established that, except in certain circumstances not applicable here, failure to object to the admission of evidence at the time it is offered waives the objection. 1 H. Brandis, North Carolina Evidence § 27 (2d rev. ed. 1982); N.C.Gen.Stat. § 8C-1, Rule 103(a)(1) (Supp.1983). A review of cases decided under G.S. § 8-53 (Supp.1983) clearly indicates that the physician-patient privilege may be waived either expressly or impliedly. See Neese v. Neese, 1 N.C.App. 426, 161 S.E.2d 841 (1968). Husband waived the privilege by failing to raise it at trial; this assignment of...