THE STATE OF SOUTH CAROLINA 

In The Court of Appeals 

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

v. 

William A. Tobias, Appellant. 

Appellate Case No. 2019-001623 

Appeal From Greenville County 

Matthew P. Turner, Family Court Judge 

Opinion No. 5895 

Heard October 14, 2021 – Filed February 23, 2022 

AFFIRMED IN PART AND REVERSED IN PART 

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 

1

 The custody and visitation issues as to J are moot because she is now over eighteen. 
 

 

 

 

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, Stitchnoth, 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 the family might be included." Fed. R. Evid. 803(4) advisory committee's note to 

paragraph (4). In the federal system, "every Court of Appeals to consider th[e] issue 

has determined that statements made to a mental health professional for the purposes 

of diagnosis or treatment qualify under the hearsay exception in Rule 803(4)." 

United States v. Gonzalez, 905 F.3d 165, 200 (3d Cir. 2018) (collecting cases); 

United States v. Kappell, 418 F.3d 550, 556 (6th Cir. 2005) (psychotherapist); 

United States v. Newman, 965 F.2d 206, 210 (7th Cir. 1992) (psychologist); Morgan 

v. Foretich, 846 F.2d 941, 949–50 (4th Cir. 1988) (psychologist). 

Rule 803(4) is subject to overextension (almost anything a mental health patient says 

could be "reasonably pertinent" to the diagnosis), and the wise trial judge will, when 

appropriate, deploy his discretion "to admit the statements only as proof of the 

patient's condition and not as proof of the occurrence of the recited events." 

Weinstein's Federal Evidence § 803.06[7] at 803-48.3 (2d ed. 2021 update) (noting 

condition for which patient is seeking mental health treatment may have distorted 

his "perception, memory, or veracity"); 4 Christopher B. Mueller & Laird C. 

Kirkpatrick, Federal Evidence § 8.75 (4th ed. 2021) (urging "caution" in extending 

Rule 803(4) to statements of mental health patients); John J. Capowski, An 

Interdisciplinary Analysis of Statements to Mental Health Professionals Under the 

Diagnosis or Treatment Hearsay Exception, 33 Ga. L. Rev. 353, 392–93 (1999); see 

also Rule 105, SCRE. That is what the family court did here. We recognize the 

"selfish treatment motivation" may not hold up when the patient is a malingerer or 
 

 

 

afflicted by a mental malady like Munchausen's syndrome, but that is why Rule 

803(4) contains the "reasonably pertinent" requirement, and Rules 401 and 403, 

SCRE, may be used to exclude the irrelevant and unduly prejudicial. It is also why 

we have cross-examination. Accordingly, we affirm the family court's ruling that 

Stichnoth and Lee could testify regarding the statements the girls made to them that 

they used in diagnosing and treating the girls. 

As to the GAL's testimony, Father did not object to admission of the GAL's report, 

and her testimony regarding J's and S's statements was cumulative to her report. See 

State v. Jennings, 394 S.C. 473, 478, 716 S.E.2d 91, 93–94 (2011) ("Improperly 

admitted hearsay which is merely cumulative to other evidence may be viewed as 

harmless."). Thus, we affirm the admission of the girls' statements during the GAL's 

testimony. See State v. Fulton, 333 S.C. 359, 363–64, 509 S.E.2d 819, 821 (Ct. App. 

1998) (appellant must show error and prejudice to warrant reversal of an evidence 

ruling). 

B. Due Process Right to Cross-Examine J 

The family court did not err in quashing J's subpoena and deciding to interview her 

off the record without the parties or their attorneys present. As noted by the family 

court, this was a custody case, not an intervention hearing to determine whether 

abuse or neglect occurred as in South Carolina Department of Social Services v. 

Wilson (Wilson I), 342 S.C. 242, 536 S.E.2d 392 (Ct. App. 2000), aff'd as modified, 

352 S.C. 445, 574 S.E.2d 730 (2002). See S.C. Dep't of Soc. Servs. v. Wilson (Wilson 

II), 352 S.C. 445, 455, 574 S.E.2d 730, 735 (2002) ("Like criminal matters, an 

important liberty interest is also at issue in an intervention proceeding."); id. 

("Accordingly, in an intervention proceeding, the child witness' testimony should be 

given in the presence of the parent/defendant."). Nevertheless, due process concerns 

are present in custody cases and confrontation rights have been recognized in civil 

cases. See Wilson II, 352 S.C. at 452–53, 574 S.E.2d at 733–34; Wilson I, 342 S.C. 

at 244, 536 S.E.2d at 393–94; In re Vora, 354 S.C. 590, 595, 582 S.E.2d 413, 416 

(2003). We believe Rule 23, SCRFC—which grants the family court the discretion 

to allow a child to testify "as to the misconduct of either parent" if the testimony is 

essential to establish the material facts—adequately protected Father's due process 

rights under the circumstances here. See Rule 23(b), SCRFC ("Children should not 

be offered as witnesses as to the misconduct of either parent, except, when, in the 

discretion of the court, it is essential to establish the facts alleged."). 

J's testimony was not essential to establish the facts. Father wanted to call J as a 

witness to ask her about the truth and context of several events and statements the 
counselors and the GAL relied upon in forming their opinions and conclusions. But 

the counselors explained their diagnoses did not depend on whether Father actually 

did or said what his daughters claimed. What mattered was the girls' perceptions of 

and responses to the situations and environment. The counselors acknowledged 

these perceptions could be flawed, unrealistic, or mistaken. Because the truth of the 

events was not essential to the custody and visitation issue, the family court acted 

within its discretion in ruling Rule 23, SCRFC, did not require J's testimony. Finally, 

given J's response to being subpoenaed and her diagnosis of PTSD and anxiety, we 

find the family court properly determined it was not in J's best interest to testify in 

the presence of the parties or their attorneys. Rule 22, SCRFC, empowered the 

family court to interview J in private. See Rule 22, SCRFC ("In all matters relating 

to children, the family court judge shall have the right, within his discretion, to talk 

with the children, individually or together, in private conference."); Dodge v. Dodge, 

332 S.C. 401, 418, 505 S.E.2d 344, 353 (Ct. App. 1998) ("[T]he decision whether to 

interview the children in private conference is a matter within the family court's 

discretion."). Thus, we affirm as to this issue as the trial proceedings minimized any 

risk that Father's rights would be wrongfully deprived and Father had a meaningful 

opportunity to be heard despite the lack of confrontation. See Matthews v. Eldridge, 

424 U.S. 319, 334–35 (1976); Wilson II, 352 S.C. at 453, 574 S.E.2d at 734. 

2. Admission of Lee's Written Report 

Father argues the family court erred in admitting Lee's written report because it was 

hearsay. We disagree. 

The portion of Lee's report detailing when Lee began treating J and S and what she 

was treating them for is admissible under Rule 7, SCRFC. See Rule 7, SCRFC 

(providing "[t]he written statement by a physician showing that a patient was treated 

at certain times and the type of ailment" is "admissible in evidence without requiring 

that the persons or institution issuing the documents or statements be present in 

court). The majority of the rest of the report detailed the girls' reports of their 

symptoms, which the family court properly admitted under Rule 803(4), SCRE, as 

statements made for medical treatment or diagnosis. Furthermore, Lee's trial 

testimony included much of what was in the report, including the girls' symptoms 

and Lee's diagnoses and recommendations. The statements in the report were 

cumulative to Lee's trial testimony, and any error was harmless. 

3. Father's Visitation Rights 
 

 

 

Father argues the family court essentially terminated his visitation rights even 

through Mother did not meet her burden of proving he was an unfit parent; there was 

no finding of abuse or neglect by Father; and Mother's evidence relied upon 

Stichnoth, Lee, and the GAL, none of whom had seen the girls interact with him. 

We disagree. 

The family court specifically stated it suspended Father's visitation rights "without 

prejudice." The greater weight of the evidence showed circumstances, namely J's 

and S's mental health, had changed and it was in their best interest to not have 

visitation with Father. See Woodall v. Woodall, 322 S.C. 7, 12, 471 S.E.2d 154, 158 

(1996) ("When awarding visitation, the controlling consideration is the welfare and 

best interest of the child."); Latimer v. Farmer, 360 S.C. 375, 381, 602 S.E.2d 32, 

35 (2004) ("In order for a court to grant a change in [visitation], there must be a 

showing of changed circumstances occurring subsequent to the entry of the divorce 

decree."). Here, while the girls had experienced other traumas, such as the death of 

their younger half-sister, both Stichnoth and Lee believed the girls were struggling 

with PTSD and anxiety due to their relationship with Father. Stichnoth believed 

Father's behavior had estranged the girls from him. Lee testified both girls did not 

feel safe with Father and did not want to visit with Father. S claimed she would run 

away if forced to visit with Father. Lee further noted J's and S's mental health had 

improved, but S suffered setbacks when her PTSD was triggered by Father. 

Accordingly, both Stichnoth and Lee recommended Father's visitation not be 

reinstated until he completed counseling and gained adequate insight into and 

appreciation of the girls' perceptions of his parenting, regardless of whether their 

perceptions were consistent with reality. To be sure, Father's cross-examination of 

the counselors demonstrated some overreaching and dubious aspects of their 

testimony. Nevertheless, Stichnoth, Lee, the GAL, and Mother all agreed that, at 

the time of the trial, reunification with Father was not in the girls' best interest. See 

Lewis v. Lewis, 400 S.C. 354, 364–65, 734 S.E.2d 322, 327 (Ct. App. 2012) ("In 

determining the best interests of the child, the family court considers 

several factors 'including: who has been the primary caretaker; the conduct, 

attributes, and fitness of the parents; the opinions of third parties (including GAL, 

expert witnesses, and the children); and the age, health, and sex of the children.'" 

(quoting McComb v. Conard, 394 S.C. 416, 422, 715 S.E.2d 662, 665 (Ct. App. 

2011))). Furthermore, there was evidence the girls, who were both teenagers at the 

time of trial, did not wish to have visitation with Father. See id; S.C. Code Ann. 

§ 63-15-30 (2008) ("In determining the best interests of the child, the court must 

consider the child's reasonable preference for custody. The court shall place weight 

upon the preference based upon the child's age, experience, maturity, judgment, and 

ability to express a preference."). Accordingly, we find the family court did not err 
in suspending Father's visitation. The situation here resembles that of Nash v. Byrd, 

298 S.C. 530, 537, 381 S.E.2d 913, 917 (Ct. App. 1989), where we affirmed the 

suspension of visitation until the Father underwent counseling designed to repair his 

relationships with his child in the hope it could become harmonious. The record 

demonstrates that both Mother and Father share responsibility for the trauma caused 

to daughters by the parties' litigation. 

4. Delegating Visitation to Counselors 

The family court erred in ordering Father could only have visitation when and if his 

counselor and Lee deemed it appropriate. Deciding issues related to the best 

interests of children, including visitation, is the exclusive authority and 

responsibility of the family court, not third parties. Singh v. Singh, 434 S.C. 223, 

232, 863 S.E.2d 330, 334 (2021) ("[T]he family court cannot delegate its authority 

to determine the best interests of the children . . . ."). Accordingly, we reverse as to 

this issue. See Kosciusko v. Parham, 428 S.C. 481, 502, 836 S.E.2d 362, 373 (Ct. 

App. 2019); Hardy v. Gunter, 353 S.C. 128, 138, 577 S.E.2d 231, 236 (Ct. App. 

2003); Stefan v. Stefan, 320 S.C. 419, 422, 465 S.E.2d 734, 736 (Ct. App. 1995) 

("While this court can appreciate the frustration of the family court in devising a 

visitation plan for the [parties], it was an error to delegate this responsibility to [third 

parties]."). 

5. Attorney's Fees and GAL Fees 

Upon de novo review, we find the family court erred in ordering Husband to pay 

one-third of Wife's attorney's fees in the amount of $12,500. We acknowledge 

Mother obtained beneficial results at trial as she was granted sole custody of the girls 

and Father's visitation remained suspended as she requested, and we do not reverse 

these beneficial results on appeal. While this factor weighs in Mother's favor, it 

alone is not enough to warrant an award of attorney's fees to Mother. See Chisholm 

v. Chisholm, 396 S.C. 507, 510, 722 S.E.2d 222, 224 (2012) ("Beneficial result alone 

is not dispositive of whether a party is entitled to attorney's fees." (quoting Upchurch 

v. Upchurch, 367 S.C. 16, 28, 624 S.E.2d 643, 648 (2006))). Based on the financial 

declarations, Mother, a nurse pursuing her doctorate, makes $4,052 in gross monthly 

income, while Father, a self-employed property developer with a high school 

education, grosses only $1,300 per month. Additionally, Father is obligated to pay 

Mother $226 in monthly child support, leaving him $1,074 a month in gross income. 

While Mother has additional financial burdens as she has three children from her 

current marriage and pays $30 a month for health insurance for all of her children, 

she also has a husband who contributes to their household's income. Based on their 
 

respective financial conditions, we find Mother is better able to pay her attorney's 

fees than Father. Forcing Father to pay his own attorney's fees of $16,575 as well 

as $12,500 of Mother's would severely impact his financial condition. See E.D.M. 

v. T.A.M., 307 S.C. 471, 476–77, 415 S.E.2d 812, 816 (1992) ("In determining 

whether an attorney's fee should be awarded, the following factors should be 

considered: (1) the party's ability to pay his/her own fee attorney's fee; (2) beneficial 

results obtained by the attorney; (3) the parties' respective financial conditions; [and] 

(4) effect of the attorney's fee on each party's standard of living."). Thus, we reverse 

the award of attorney's fees to Wife. 

However, the family court did not err in ordering Father to pay half of the GAL fees 

in the amount of $5,274.69. The GAL well performed her duties and is entitled to 

payment for her professional services. See Marquez v. Caudill, 376 S.C. 229, 250, 

656 S.E.2d 737, 747 (2008). 

IV. CONCLUSION 

We commend the family court for its patient and deliberate handling of this difficult 

case. We affirm the family court's admission of the girls' statements as testified to 

by Stichnoth, Lee, and the GAL. We also affirm the suspension of Father's visitation 

rights, the admission of Lee's written report into evidence, and the family court's 

decree that Father pay half of the GAL fees. We reverse the family court insofar as 

it allowed Lee and Father's counselor to determine when and if Father could resume 

visitation with the girls and ordered Father to pay Mother $12,500 in attorney's fees. 

AFFIRMED IN PART AND REVERSED IN PART. 

KONDUROS and HEWITT, JJ., concur.