Gustafson v. Gustafson

158 S.E.2d 619 (1968)

272 N.C. 452

Susan Walker GUSTAFSON v. Bruce A. GUSTAFSON.

No. 211.

Supreme Court of North Carolina.

January 12, 1968.

*621 Hudson, Ferrell, Petree, Stockton, Stockton & Robinson, by Dudley Humphrey and W. G. Smith, Wilmington, for defendant appellant.

Burney & Burney by, John J. Burney, Jr., Marshall & Williams by Alan A. Marshall, Wilmington, for plaintiff appellee.

PLESS, Justice.

The order of Judge Mintz relates only to the custody of the little girl, and as is said in In Re Marlowe, 268 N.C. 197, 150 S.E.2d 204, "the control and custody of minor children cannot be determined finally. Changed conditions will always justify inquiry by the courts in the interest and welfare of the children, and decrees may be entered as often as the facts justify." From its very nature the order is temporary, and the exception of the defendant to the use of ex parte affidavits is not well taken. He insists that he should be permitted to cross examine the makers of the affidavits which were presented by the plaintiff. This was denied in the discretion of the Court, and in this ruling there was no abuse. Affidavits may be prepared by the attorneys in advance, with some regard for the convenience of the witnesses, and thereby a written record is provided. Should we accept the contentions of the defendant and forbid the use of affidavits and require the presence, examination and cross examination of each of the witnesses at preliminary and temporary hearings and motions pending trial, it would cause serious and unnecessary delay. The ultimate right of cross examination will be afforded the parties at the trial of the cause, and this is within the purview of the Court's decision in Stanback v. Stanback, 266 N.C. 72, *622 145 S.E.2d 332 and 270 N.C. 497, 155 S.E.2d 221. We have examined the authorities cited by the defendant in support of his position but find none of them applicable under the conditions of the hearing before Judge Mintz.

The defendant contends that he is entitled to examine the physicians that treated the plaintiff for the illness she alleges in her complaint to have been caused by his conduct. The plaintiff invokes G.S. § 8-53 which provides that the relationship between physician and patient is confidential and that under it a physician shall not be required to disclose any information he acquired in attending a patient which was necessary to enable him to prescribe for the patient. It further provides "the presiding judge of a superior court may compel such disclosure, if in his opinion the same is necessary to a proper administration of justice." Remembering that Judge Mintz was not "a presiding judge" in that the proceedings did not constitute a trial but merely an inquiry to determine the temporary custody of the child, we are of the opinion that he was not authorized under the proviso quoted above to compel the disclosures sought by the defendant. In fact, the defendant's contention is decided adversely to him in Yow v. Pittman, 241 N.C. 69, 84 S.E.2d 297. In that case the defendant sought an order to take the deposition of a doctor, and upon a hearing before the resident judge at chambers, the application was denied. In affirming this action, Higgins, J., speaking for the Court, said:

"The statute contemplates a superior court in term. As stated in the cases cited, the presiding judge must enter his findings upon the record. This he can do only in term and after hearing. While Judge Rudisill was a Judge of the Superior Court, he was not at the time the presiding judge of a superior court in term. He had no authority to enter the requested order in Chambers."

In her complaint Mrs. Gustafson made no allegations concerning the treatment given her by any physician. True it is that the defendant adversely examined her and in her testimony she answered the questions of defendant's attorneys with regard to the names of the physicians and the dates and nature of treatment prescribed by each of them. As a result of the information thus elicited by the plaintiff's involuntary appearance for examination, he now seeks to obtain the evidence of the physicians named. The plaintiff through her attorneys has notified the physicians that they have not been released from the confidential character of their association with Mrs. Gustafson and have been forbidden to disclose information gained in that manner; and since no "presiding judge" has found that "the same is necessary to a proper administration of justice," we are of the opinion that the rule stated in Lockwood v. McCaskill, 261 N.C. 754, 136 S.E.2d 67, is applicable:

"In our view, the proviso in G.S. 8-53 does not authorize a superior court judge, based on the circumstance that he is then presiding in the county in which the action is pending, to strike down the statutory privilege in respect of any and all matters concerning which the physician might be asked at a deposition hearing. Doubtless, in practically all personal injury actions the defendant would deem it advisable, if permitted to do so, to examine before a commissioner or notary public in advance of the trial the physician(s) of the injured party to `evaluate the case' and `to prepare his defense.' Obviously, if this course were permitted, the privilege created by the statute would be substantially nullified. This practice, if considered desirable, should be accomplished by amendment or repeal of the statute."

It must be recalled that at the trial of the case affidavits will not be admissible and that the witnesses must appear in person. Therefore the fact that in this hearing for a temporary purpose the plaintiff used the affidavits of physicians who treated her *623 does not bring into play the proviso of G.S. § 8-53.

The defendant further excepts to the failure of Judge Mintz to allow him to inspect the "notes that were relied upon by a witness during his testimony," citing State v. Carter, 268 N.C. 648, 151 S.E.2d 602. However, the facts of that case are quite distinguishable from the situation here. The defendant called Dr. R. H. Fisscher as a witness in his behalf. He testified that he saw Mrs. Gustafson on two occasions and that he took notes relating to them. He stated that he had the notes with him in response to the subpoena served upon him at the behest of the defendant. The defendant then asked that he be permitted to see the notes. Upon inquiry it appeared that the doctor was not using the notes at the time of his examination, although they were in the possession of someone else in the courtroom. Had the doctor been refreshing his memory from the use of his notes as he testified, State v. Carter, supra, might be applicable; but the very fact that he had notes somewhere under his control would not require that the defendant be allowed to inspect them. Also, the privileged communication rule extends to writing as well as to oral testimony; and when a paper is of a privileged character and in the hands of a person within the privileged relation, the Court will not compel him to produce the paper. 58 Am.Jur., Witnesses, § 366.

Again emphasizing that all custody orders are temporary in that they are founded upon conditions existing at the time of the hearing, we can see no validity in the defendant's claim that a resident judge in chambers does not have authority to determine custody of a child. There may be seven or eight months between terms in our less populated counties. The welfare and custody of a little child is an urgent matter in which substantial harm can be caused by delay. There is nothing about such proceeding that requires term-time consideration. A jury is not neededthe judge alone decides the question of custody. Further, both G.S. § 50-13 and G.S. § 50-16, relating to custody, refer to "the resident or presiding judge of the district," and G.S. § 7-65 gives the resident judge and the presiding judge of the district "concurrent jurisdiction in all matters and proceedings where the superior court has jurisdiction out of term" and provides further that in all matters and proceedings not requiring the intervention of a jury, the resident judge shall have concurrent jurisdiction with the presiding judge of the district.

From the record it appears that both the plaintiff and the defendant are of good character and that the court could well have adjudged that both were fit and suitable persons to have the custody of this child. In view of the exceptions taken, we find it unnecessary to further discuss the evidence offered before Judge Mintz. In a three-day hearing he observed both parents, heard their evidence, noted their demeanor and attitude and thereupon made his order.

When the case comes on for trial and the jury has answered the issues within its province, it is to be assumed that the presiding judge will then make further orders respecting the custody of this little girl, although the verdict will not necessarily govern those orders. It is to be hoped that the "polar star" will control the destiny of this unhappy ship of marriage and result in the innocent child coming into a safe and secure harbor.

In the order below we find

No error.

BOBBITT, Justice (concurring):

In my view, G.S. § 8-53 confers upon a superior court judge discretionary authority to compel a doctor to disclose the confidential information referred to therein only in a trial or hearing conducted by such superior court judge. Hence, I agree Judge Mintz had no authority to order such disclosure by a doctor at a deposition hearing. *624 I reserve the question, not presented for decision on this appeal, as to whether a superior court judge, when conducting a custody hearing, either at term or in chambers, is a presiding judge within the meaning of G.S. § 8-53. In such case, the superior court judge has sole responsibility and authority for decision. Subject to this reservation, I concur.