Court of Appeals’ Glinyanay opinion addresses numerous novel family law issues

The February 23, 2022, Court of Appeals opinion in Glinyanay v. Tobias addresses numerous novel legal issues that tend to recur in South Carolina custody litigation. It is the first reported opinion addressing Rule 23, SCFCR, regarding presence or testimony of a child. It confirms that the hearsay exception of Rule 803(4), SCRE, applies to mental health professionals. It reverses an award of attorney’s fees to the prevailing party because of her greater ability to pay fees. All of these issues are novel.

Glinyanay began as a visitation modification case brought by Mother. At trial the family court issued an order granting 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 fees. Father appealed the custody determination and the fee awards.

In appealing the custody determination Father raised numerous evidentiary issues. One issue was the family court’s refusal to make the parties’ oldest daughter testify. Father sought this testimony as both daughters were reporting concerning facts about him to the counselor and the guardian. He also appealed the family court overruling his hearsay objections to the counselor, the parental alienation expert, and guardian’s testimony on what the daughters told them.

As for the hearsay issue, the Court of Appeals found the counselor’s and expert’s testimony met the requirements of the Rule 803(4), SCRE exception. That rule 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.

While South Carolina had not previously applied this hearsay exception to the admissibility of a statement made to a therapist or mental health professional, the Court of Appeals noted the rule was not limited to medical doctors but encompassed all medical treatment. It further noted that other jurisdictions had uniformly interpreted this rule to apply to mental health treatment. Yet in affirming the admission of this evidence the Court of Appeals advised caution when this exception is used to admit what patients told counselors in the midst of custody litigation:

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.” 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.

Citations omitted.

Because it decided the counselor’s testimony met the hearsay exception, it sustained the family court’s admission of her written report, finding it either met the requirements of Rule 7(c), SCFCR, or was cumulative of testimony already admitted.

The Court of Appeals also affirmed the guardian testifying about the daughters’ statements, noting that the guardian’s report, which was entered into evidence without objection, contained those same statements and the guardian’s hearsay testimony was therefore “cumulative to her report.”

Father had sought the right to cross examine the older daughter “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.” Instead the family court decided to interview her off the record without the parties or their attorneys present. In affirming the family court’s decision, the Court of Appeals noted the daughter’s “testimony was not essential to establish the facts.” Rather:

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.

Father also argued the custody determination “essentially terminated his visitation rights even
through Mother did not meet her burden of proving he was an unfit parent.” In affirming the family court’s decision to suspend his visitation pending a psychological evaluation and recommended treatment, the Court of Appeals cited evidence that the daughters’ mental health had deteriorated from their visits with their Father. It further noted Father’s visitation rights were suspended “without prejudice.”

However the Court of Appeals did reverse the provision of the family court order suspending Father’s visitation until his and daughters’ counselors “deemed it appropriate.” Given the number of reported opinions holding that children’s custody issues cannot be delegated to non-judicial decision makers, it is astounding that family court judges continued to do this. But they do.

Given Mother’s successful results on custody being affirmed on appeal it is surprising that the Court of Appeals reversed her $12,500 fee award. However it noted her income was over three times Father’s income, Father had to pay Mother child support, and Mother had a spouse contributing to her household expenses. It also noted “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.” Thus it reversed Mother’s fee award.

However it affirmed the ruling that Father should pay one-half the guardian’s fee, noting the “GAL well performed her duties and is entitled to payment for her professional services.”

Glinyanay confirms what I had long suspected about Rule 803(4), SCRE, applying to mental health professionals. It provides useful guidance on the application of Rule 23, SCFCR. Finally, in reversing a fee award to a completely successful party given the other party’s substantially weaker financial condition, it may make family court judges hesitant to award fees in such situations.

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Court of Appeals’ Glinyanay opinion addresses numerous novel family law issues