THE STATE OF SOUTH CAROLINA In The Court of Appeals

Elena V. Glinyanay f/k/a El ena 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 – F iled 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 th eir 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 co uld resume, and orde ring Father to pay $12,500 of Mother's attorney's fees a nd 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 th ese challenges isFather's claim that admission of the statem ents 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 wh en his visitation may

resume to the counselors. Fina lly, Father asks us to reve rse 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, wh ich we reverse.

I. FACTS

The parties divorced in 2011. Pursuant to th eir divorce decree, th e parties agreed to joint custody of their two daughters, "J" 1 and "S." The partie s have since engaged in sporadic litigation over cu stody and visitation. A 2013 order approved the parties' joint custody agreement with Moth er 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 psyc hologically evaluated, and attorney's fees.

Mother claimed a substan tial change in circumstances, based in part on J's allegations that Father ha d touched her inappropriatel y. Father answered and counterclaimed, denying the a llegations 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 cour t also appointed Amie S. Carpenter, Esquire, as the GAL. A second temporar y 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 a ssessment conducted by Ci ndy Stichnoth.

The case was tried for four days in June 2019. At the outset, the GAL and Mother moved to quash Father's subp oena 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 girl s' counselor. Father objected to Stichnoth and Lee testifying as to statements J and S made during thei r 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 ar e 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 wr itten report as bolstering and hearsay, but the family court admitted the report. Th e 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 visita tion rights. The family court also ordered Father to undergo a psychological ev aluation and complete any recommended

treatment. It further stated Father's co unselor and Lee "shall work together to

determine the best course of action to reun ify 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 th is Order, Father may petition the court to request vi sitation if he has not been allowed any visitation or to request an increase in any visitation approve d 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 a nd 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 fa mily 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 ag ainst 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, Hearsa y, and Calling J as a Witness

Over Father's objection, Stitchnoth, L ee, 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 concerni ng the statements and the court quashed his subpoena of J.

A. HearsayStichnoth'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 statemen ts regarding mental health. Thompson v. Aetna Life Ins. Co , 177 S.C. 120, 180 S.E. 880, 883–84 (1935). Howe ver, the exception covered only those statements the doc tor 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 Ru les of Evidence arrived in 1995, the exception emerged as Rule 803(4), SCRE, which authorizes th e admissibility of:

Statements made for purpose s 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 caus e 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 stat ement 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 presen t 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 th e minor patient concerning the identity of his abuser that were not made for the pur poses 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 ra pe victim told her defenda nt had asked if he could hug victim before he assaulted her wa s not admissible under Rule 803(4), as statement "in no way can be viewed as 'reas onably pertinent' to vi ctim's diagnosis or treatment").

Statements made for purposes of medical diagnosis or treatment are exempt from the rule against hearsay because of their ge neral 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 thatthe 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 statemen ts 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 ad missibility 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 ba sed in part on inadmissible hearsay as Rule 703, SCRE, no w permits). The text of th e 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 th e statement "need not have been made to a physician. Statements to hospital attend ants, 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 federa l 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 Ci r. 1992) (psychologist); Morgan

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

Rule 803(4) is subject to overextension (alm ost anything a mental health patient says could be "reasonably pertinent" to the diagnos is), and the wise trial judge will, when appropriate, deploy his discre tion "to admit the statements only as proof of the patient's condition and not as proof of th e 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 ment al 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 Pr ofessionals Under the Diagnosis or Treatment Hearsay Exception , 33 Ga. L. Rev. 353, 392–93 (1999); see also Rule 105, SCRE. That is what the fa mily court did here. We recognize the "selfish treatment motivation" may not hold up when the patient is a malingerer orafflicted by a mental mala dy like Munchausen's syndrom e, but that is why Rule 803(4) contains the "reasonably pertinen t" requirement, and Rules 401 and 403, SCRE, may be used to exclude the irrelevant and unduly prej udicial. 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 cumulativ e to other evidence may be viewed as harmless."). Thus, we affirm the admission of the gi rls' 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 e rror 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 decidi ng 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 inte rvention 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. Se rvs. v. Wilson (Wilson II) , 352 S.C. 445, 455, 574 S.E.2d 730, 735 (200 2) ("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."). Nevert heless, 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 misc onduct 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. Fa ther wanted to call J as a

witness to ask her about the truth and cont ext of several events and statements thecounselors and the GAL relied upon in form ing their opinions and conclusions. But the counselors explained their diagnoses di d not depend on whether Father actually did or said what his daughters claimed. Wh at mattered was the girls' perceptions of and responses to the situations and e nvironment. The c ounselors 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, SCRF C, 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 wa s 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 conferen ce is a matter within the family court's discretion."). Thus, we affirm as to this issue as the trial pro ceedings minimized any risk that Father's rights would be wrongfu lly 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 admissi ble under Rule 7, SCRFC. See Rule 7, SCRFC (providing "[t]he wr itten statement by a physician showi ng 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 th e 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 proper ly 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 th e report, including the girls' symptoms and Lee's diagnoses and re commendations. The statements in the report were cumulative to Lee's trial testimony, and any error wa s harmless.

3. Father's Visitation RightsFather argues the family court essentiall y 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 Fath er; and Mother's evidence relied upon Stichnoth, Lee, and the GAL, none of whom had seen the gi rls interact with him. We disagree.

The family court specifically stated it su spended Father's visitation rights "without prejudice." The greater weight of the ev idence showed circum stances, namely J 's and S's mental health, had ch anged and it was in their be st 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 c ontrolling considerati on 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 gi rls had experienced other traumas, such as the death of their younger half-sister, both Stichnoth a nd Lee believed the girls were struggling with PTSD and anxiety due to their rela tionship with Father. Stichnoth believed Father's behavior had estranged the girls fr om 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 reco mmended 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 ove rreaching and dubious aspects of their testimony. Nevertheless, Stic hnoth, Lee, the GAL, and Mo ther all agreed that, at the time of the trial, reunification with Fath er 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 th e child, the family court considers several factors 'including: who has been the primary careta ker; the conduct, attributes, and fitness of the parents; th e opinions of third parties (including GAL, expert witnesses, and the children); and th e 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 th e 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 reasona ble preference for custody. The court shall place weight upon the preference based upon the child's ag e, experience, maturity, judgment, and ability to express a preference."). Accordi ngly, we find the family court did not errin suspending Father's visitation. Th e 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 u nderwent counseling desi gned 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 issu es related to the best interests of children, including visita tion, 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 frust ration 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 c ourt erred in ordering Husband to pay one-third of Wife's attorney's fees in the amount of $12,50 0. We acknowledge

Mother obtained beneficial results at trial as she was granted sole custody of the girls and Father's visitation remained suspende d as she requested, a nd we do not reverse these beneficial results on appeal. While th is 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 he r doctorate, makes $4, 052 in gross monthly income, while Father, a self-employed pr operty developer with a high school education, grosses only $1,300 per month. Additionally, Father is obligated to pay Mother $226 in monthly child support, leav ing 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 h ealth insurance for all of her children,

she also has a husband who contributes to their household's income. Based on theirrespective 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 aw arded, 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 pa rties' respective fina ncial conditions; [and] (4) effect of the attorney's fee on each part y'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 we ll 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 a ffirm 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 de termine 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 AN D REVERSED IN PART.

KONDUROS and HEWITT, JJ., concur.