Elena V. Glinyanay v. William A. Tobias

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.