91 N.C. App. 469 | N.C. Ct. App. | 1988
Plaintiff contends that because the trial court ignored the concerns reflected in prior custody orders restricting Realon’s presence around the child when it issued the order of 21 September 1987, it exceeded its authority and the order is not valid. We disagree. Although they provide guidance, prior custody orders are not binding in subsequent proceedings. Custody orders are not permanent, but remain freely modifiable upon appropriate evidence of changed circumstances. N.C. Gen. Stat. § 50-13.7 (1987); Stanback v. Stanback, 266 N.C. 72, 145 S.E. 2d 332 (1965); Best v. Best, 81 N.C. App. 337, 344 S.E. 2d 363 (1986).
The trial court found as changed circumstances defendant’s marriage to Realon and the child’s recurring cases of vaginitis, which it concluded showed poor hygiene and supervision. It found these circumstances sufficient to remove all restrictions imposed by prior orders on Realon’s presence around the child, and awarded custody to defendant. Although these circumstances also might have led the court to award custody to plaintiff, given the evidence of possible sexual abuse, on appeal we cannot substitute our judgment for that of the trial court. In this discretionary matter, appellate review is confined to determining whether the trial court clearly abused its discretion. White v. White, 312 N.C. 770, 324 S.E. 2d 829 (1985). Evidence in the Record supports the court’s finding that the child was never abused, so we cannot say that its decision to award custody to defendant and remove all restrictions on Realon was unsupported by reason. See Clark v. Clark, 301 N.C. 123, 271 S.E. 2d 58 (1980). These assignments are overruled.
Plaintiff also assigns as error the trial court’s failure to address his evidence of the child’s numerous statements regarding painful contact with a man named “Rod.” Plaintiffs evidence tended to show that the two-year-old child told plaintiff in early April and again in late April or early May of 1986 that “Rod hurt [her] bottom”; that on another occasion she made a cylindrical object with balls on the end and described it as “Rod’s pee pee”; and that she complained on several other occasions to her father and to others, including a psychologist, about Rod having hurt her bottom, either with his finger, or with his “toy.” The psychologist, Dr. Gallaway, concluded from his conversations with the child
The trial court did not resolve the question of whether or why these statements were made, and we are concerned by the lack of factual findings on this issue. The trial court is not required, however, to make findings of fact on every issue presented by the evidence, In re Custody of Stancil, 10 N.C. App. 545, 179 S.E. 2d 844 (1971), but is only required to find enough material facts to support its judgment. Medlin v. Medlin, 64 N.C. App. 600, 307 S.E. 2d 591 (1983). This assignment is overruled.
A witness from the Burke County Department of Social Services testified that following an investigation into the alleged sexual abuse of the child, the Department “unsubstantiated” the charges. Plaintiff characterizes this testimony as inadmissible hearsay. While we agree that the testimony has characteristics of hearsay under the North Carolina Rules of Evidence, see N.C. Gen. Stat. § 8C-1, Rule 802 (1986), we hold that its admission was not prejudicial. “ ‘The admission of incompetent testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative.’ ” In re Peirce, 53 N.C. App. 373, 281 S.E. 2d 198 (1981) (quoting Board of Education v. Lamm, 276 N.C. 487, 173 S.E. 2d 281 (1970)). Because both plaintiff and defendant presented a considerable amount of conflicting evidence regarding the alleged sexual abuse, we conclude that the admission of this testimony was not prejudicial. This assignment is overruled.
Pursuant to a court order the child was examined by Dr. Riddle, an expert in child psychiatry, on seven occasions between 14 January 1987 and 27 June 1987. He concluded that she was never abused.
Plaintiffs final assignment of error concerns Dr. Riddle’s testimony, in which he repeated statements made to him by the child during his examinations. Statements made for the purpose of medical diagnosis and treatment, because of their inherent reliability, are admissible under an exception to the hearsay rule. N.C. Gen. Stat. § 8C-1, Rule 803(4) (1986); State v. Oliver, 85 N.C. App. 1, 354 S.E. 2d 527, disc. rev. denied, 320 N.C. 174, 358 S.E. 2d 65 (1987). Statements made to a physician in preparation for trial,
On direct examination Dr. Riddle stated that defendant took the child to him for purposes of “evaluation, diagnosis, if I came to any, and to provide whatever treatment that might be indicated.” (Tp. 636.) Dr. Riddle testified on cross-examination that defendant also discussed the approaching trial with him. Although their conversation indicates some interest with the trial, the Record is insufficient to support plaintiffs contention that Dr. Riddle’s examinations were conducted only for the purpose of trial. This assignment is overruled.
Allegations and evidence of child abuse require serious evaluation. The trial court’s rather conclusory findings on this gravely important issue are troubling, but we cannot reverse its order simply because we might have reached a different result on conflicting evidence. Best, supra.
For the reasons stated, the order of the trial court is
Affirmed.