Phelps v. Phelps

426 S.E.2d 294, 109 N.C. App. 242, 1993 N.C. App. LEXIS 221
CourtCourt of Appeals of North Carolina
DecidedMarch 2, 1993
DocketNo. 9115DC1063
StatusPublished
Cited by1 cases

This text of 426 S.E.2d 294 (Phelps v. Phelps) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phelps v. Phelps, 426 S.E.2d 294, 109 N.C. App. 242, 1993 N.C. App. LEXIS 221 (N.C. Ct. App. 1993).

Opinion

WELLS, Judge.

This case dramatically illustrates the frustrating and difficult aspects of our adversarial method of determining child custody between separated or divorced parents.

Joshua Phelps’ parents separated when he was two years old. For approximately two years following separation, Joshua was “shared” by his parents, spending alternate weeks with each parent. When this action was initiated, Joshua was three, and when the case came to trial, he was five. He will be seven years old on 26 May 1993.

The trial of this case lasted for six days. Plaintiff entered sixty-one assignments of error to the trial court’s order, and filed a thirty-five page brief with an extensive appendix. These materials [244]*244reflect (1) that plaintiff is profoundly dissatisfied with the trial court’s conduct of the trial and the resulting order; (2) defendant is convinced that the trial was fair and that the resulting order was just and correct; and (3) that these parents are profoundly antagonistic with each other as to this only child’s education, religious training, general lifestyle, and the influence of each parent on Joshua during his formative years. Ironically, the record also reflects that both parents are well educated and financially secure, both parents being employed in responsible positions at Duke University. Just as ironically, the trial court found both parents to be loving and concerned for Joshua’s welfare and both fit to have custody. However, for reasons which we cannot agree were valid, the trial court found and concluded that it was in Joshua’s best interest that sole custody be awarded to defendant.

At the trial, each parent, by varied and diverse evidence, attempted to establish that he/she was better able and suited to have custody of Joshua, and, consistently with our adversarial system, attempted to emphasize the character and personality flaws of the other, including “bad” influence on Joshua. Joshua was not called as a witness, which brings us to one of the assignments of error aimed at what plaintiff contends was an erroneous ruling on the admission of crucial evidence. Although, as we have noted, Joshua was not called as a witness, the trial transcript makes it clear that plaintiff wanted to get across to the trial court that some of defendant’s conduct, particularly comments by her to Joshua about his father, were having an unwholesome effect on Joshua, perhaps to the point of emotional disturbance. In this context, the following events transpired. Plaintiff’s counsel put the following questions to plaintiff: “Jake, just tell the court what kind of relationship do you have with Joshua. Let me strike that your Honor. Just tell us about Joshua.” Then plaintiff proceeded to describe Joshua, the child and the person, in extensive glowing terms, closing with this comment: “I don’t want to go on too long for the Court . . . but I can talk about Joshua forever.” The testimony continued:

Q. Let me ask you about some things you did say.
The COURT: He can describe his concerns but I don’t think he can tell me what Joshua said. . . .
Mr. BRYAN: They’re based on —
[245]*245THE COURT: (Interposing) What he said. All right.
A. I am concerned—
Mr. MILLS: (Interposing) Wait.
Mr. BRYAN: I’m sorry.
THE Court: That’s fine.
A. Thank you, Your Honor. I am concerned about what he is concerned about. I am concerned that he seems troubled by interactions with his mother at times, often. I am concerned that he doesn’t know how to treat them, and that I am caught between trying to reassure him that there is nothing wrong with his feeling troubled at the same time that I’m trying to nourish his positive relationship with his mother. It’s a very difficult thing to do. It puts him in a position of not wanting to argue with me about how good he should feel towards his mother but he can’t feel it and it’s obvious and makes it a very hard thing and will keep me up at night even after he is able to go to sleep.
Q. Let me start, Jake, with how you handle these times when these things come up from Joshua.
A. I try to talk to him about the fact that we all have disagreements. I try to generalize to keep him from focusing in a negative way on his mother. I try to talk about — I try to divert him to something that’s positive that happened in the same general area of activity or in the same general time period.
May I elaborate a little more? There is something that’s deeper than that too. For example, when he finished talking to her about three Sundays ago and there were two witnesses there who saw this, he got off the phone and began to beat his big bear with a mallet in the left eye and said he was trying to get his eye out. And we were trying to talk to him about it and he was very upset after this conversation with Lisa and then he said it was because Lisa told him.—
Mr. Mills: (Interposing) Objection.
The Court: Sustained.
[246]*246Mr. BRYAN: Okay. Your Honor, we offer it not for the truth of the matter.
Mr. MILLS: Your Honor, that’s exactly why he’s offering it. He’s offering it for the truth of the matter, Your Honor.

Counsel then argued extensively about whether Joshua’s statements to his father should be admissible under exceptions to the hearsay rule, plaintiff arguing generally that they should be admitted to show Joshua’s “state of mind,” citing and relying upon this Court’s opinion in Griffin v. Griffin, 81 N.C. App. 665, 344 S.E.2d 828 (1986). At the close of arguments, the court made the following ruling:

THE COURT: Well, it’s always been a huge problem especially with small children in any kind of custody case and when they get a little bit older, you can talk to them. But you can’t talk to five year olds and I don’t think it’s proper to put them on the stand and cross examine them. And that’s where the problem is that we would have to rely on what he has to say in a hotly contested custody case that he says the child says about his mother. And, you know, that goes to the weight of the evidence, that’s clear. But, you know, it’s Judge Becton’s ruling. . . .
I have for some time believed 803 probably would lead me —allow some of the testimony of children in, and I think, on some of the sex abuse cases that we’re seeing makes it very clear that the Supreme Court is leaning too in that direction.
I am going to allow him to say, realizing that I probably am opening a keg of worms, and I will strike it immediately if it does not rise to what I believe is implicit in Rule 803, especially those first three. It is a dangerous thing and I want Ms. Phelps to understand and Mr. Phelps too, it is a dangerous thing for judges to listen to what children — what you’re quoting children as saying. Number one, you hear what you want to hear. I am now six times a grandmother, four times a mother, you hear what you want to hear.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Phelps v. Phelps
446 S.E.2d 17 (Supreme Court of North Carolina, 1994)

Cite This Page — Counsel Stack

Bluebook (online)
426 S.E.2d 294, 109 N.C. App. 242, 1993 N.C. App. LEXIS 221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phelps-v-phelps-ncctapp-1993.