Daly v. Kelly

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA19-532

Filed: 21 July 2020

Lee County, No. 15 CVD 276

MICHAEL B. DALY, Plaintiff

v.

CHRISTY KELLY, Defendant

Appeal by plaintiff from orders entered 7 March 2018, 28 January 2019, 10

June 2019 by Judge Mary H. Wells in District Court, Lee County. Heard in the Court

of Appeals 13 November 2019.

Manning, Fulton & Skinner, P.A., by Michael S. Harrell, for plaintiff-

appellant.

Post, Foushee & Patton, P.A., by Kristy G. Patton, for defendant-appellee.

Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P., by Timothy P.

Lehan and Robert E. Desmond, for non-party Katie Thomas, LCSW.

STROUD, Judge.

Plaintiff-father appeals trial court orders modifying permanent child custody,

granting motions to quash, denying motions for contempt by both parties, and

denying his offer of proof regarding the minor child’s testimony. Where the trial court

quashed Father’s subpoena to the child for testimony, the trial court was required to

allow Father to make an offer of proof of the child’s testimony under North Carolina

Rule of Civil Procedure 43 as this evidence does not clearly appear to be inadmissible

DALY V. KELLY

Opinion of the Court

or privileged. In addition, the trial court erred by having the child’s therapist’s

records produced to the trial court for in camera review only without even allowing

counsel to review the records. Although the trial court did not err by sealing the

therapy records of a child so they are not available in the public court file, the trial

court did not present any legal justification for preventing the parties from having at

least some form of access to the records. In a high conflict custody case such as this

one, the testimony of the child and the therapist’s notes are obviously pertinent.

Because all of the trial court’s findings of fact and conclusions of law regarding

modification of custody were based upon the evidence presented without the benefit

of an offer of proof or evidence from Father regarding the child’s desires and without

access by the parties or counsel to the therapist’s records, we are unable to review the

substantive arguments regarding the custody order. The trial court erred in (1)

denying Father the right to make an offer of proof and in (2) sealing records upon

which the trial court relied in granting Mother’s motion to modify custody, so we must

reverse and remand the 10 June 2019 order as to modification of custody for a new

hearing.1

I. Background

1 The order on appeal also denied the parties’ motions for contempt. Father has not addressed the

denial of his motions for contempt on appeal, and Mother did not cross-appeal to challenge the denial

of her motions for contempt. Thus, this opinion addresses only the trial court’s rulings as to motions

to quash and modification of custody.

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Opinion of the Court

In 2001, the parties were married and had one child, Amy.2 In 2013, the

parties separated, and in 2015, the parties divorced. On 6 January 2016, the trial

court entered a child custody order granting joint legal custody to the parties, with

Mother having primary physical custody and Father having visitation. On 14 June

2017, Mother filed a verified “DEFENDANT’S SECOND MOTION TO SHOW

CAUSE FOR CONTEMPT AND MOTION TO MODIFY CHILD CUSTODY[.]”3

Mother alleged that Father was not complying with the custody order and further

that he was bullying Mother, making threats regarding the timing of his visitation,

harassing Mother, disparaging Mother in front of the child, and telling the child to

put the Mother on the phone though under the custody order communication should

be through email. Mother further contended that Father’s actions were causing

substantial emotional distress and chaos for the child. After this motion for contempt,

both parties filed additional motions for contempt.

On or about 21 December 2017, Father filed and served a notice of deposition

and subpoena duces tecum for Ms. Katie Thomas, LCSW, Amy’s therapist. Pursuant

to the subpoena, Father requested Ms. Thomas to produce “[a]ny and all notes or

other documents from any counseling sessions with” Amy and “[a]ny and all

communications you have had with” Mother. The deposition was scheduled for 25

2 We have used a pseudonym to protect the child’s privacy.

3 Our supplement to the record filed pursuant to North Carolina Rule of Appellate Procedure 9(d)(2)

contains an 11 May 2016 motion for contempt, presumably Mother’s first motion.

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Opinion of the Court

January 2018. On 4 January 2018, Father’s counsel received a letter from Mr.

Timothy Lehan, counsel for Ms. Thomas, stating that the subpoena was not “HIPPA”

compliant. Father’s counsel responded on 8 January, correctly noting that under the

existing custody order, Father was entitled to full access to Amy’s records and that

Mother had not raised any objections to the notice of deposition or subpoena.

On 16 January 2018, Mother filed an objection to notice of deposition and

subpoena and motion for protective order. The introduction to the motion states it is

based upon North Carolina Rules of Civil Procedure 26, 30 and 45, although the

substance of the motion does not mention what relevance any of these rules have to

the relief requested. According to Mother’s motion, four days prior, on 12 January

2018, Mother was faxed Father’s motion to compel compliance with subpoena and

notice of hearing for 24 January 2018.4

Mother’s motion alleged Father’s counsel had not consulted with her counsel

about scheduling the deposition and it is “standard and customary practice” to have

mental health records of this sort produced under seal. Mother further alleged

Father’s attempt to subpoena the records would interfere with the therapeutic

relationship between the child and Ms. Thomas. However, Ms. Thomas did not file a

4 The motion to compel was not file stamped until 22 January 2020.

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Opinion of the Court

motion to quash or any objection to the subpoena other than the letter from her

counsel.5

On 24 January 2018, the trial court held a hearing on Father’s Motion to

compel and Mother’s objection to the subpoena and motion for protective order.

Counsel for Ms. Thomas also appeared at the hearing. On 7 March 2018, the trial

court entered an order denying Father’s motion to compel without prejudice and

granting Mother’s motion for protective order. The trial court ordered Ms. Thomas

to produce the records as subpoenaed by Father under seal to the trial court within

14 days of the order for in camera review and no deposition of Ms. Thomas could be

taken until after the trial court reviewed the records and entered an additional order

regarding the scope of discovery allowed. Ms. Thomas produced the records to the

trial court on 15 March 2018. The trial court kept the child’s records under seal and

did not allow either party or counsel to review them.

5 “Written objection to subpoenas.--Subject to subsection (d) of this rule, a person commanded to

appear at a deposition or to produce and permit the inspection and copying of records, books, papers,

documents, electronically stored information, or tangible things may, within 10 days after service of

the subpoena or before the time specified for compliance if the time is less than 10 days after service,

serve upon the party or the attorney designated in the subpoena written objection to the subpoena,

setting forth the specific grounds for the objection. The written objection shall comply with the

requirements of Rule 11. Each of the following grounds may be sufficient for objecting to a subpoena:

a. The subpoena fails to allow reasonable time for compliance.

b. The subpoena requires disclosure of privileged or other protected matter and no exception or

waiver applies to the privilege or protection.

c. The subpoena subjects a person to an undue burden or expense.

d. The subpoena is otherwise unreasonable or oppressive.

e. The subpoena is procedurally defective.”

N.C. Gen. Stat. § 1A-1, Rule 45(c)(3) (2017) (emphasis added).

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Opinion of the Court

On 5 September 2018, the trial court again held a hearing on Father’s motion

to compel, as anticipated by the 7 March 2018 order. On 20 September 2018, the trial

court entered an order allowing Father to depose Ms. Thomas by written questions

only, limited to a list of questions as noted in the order. Ms. Thomas was required to

respond to the written questions by 5:00 pm on 19 September 2018.6 Ms. Thomas

responses were filed on 20 September 2018.

On 20 September 2018, the trial court entered a pretrial order addressing the

upcoming hearing which would address seven pending motions filed by the parties,

including Mother’s motion to modify custody and both parties’ total of six motions for

contempt. The hearing on these motions started on 20 September 2018 and continued

into the next day but was not completed. The hearing resumed on 26 October 2018.

On or about 15 October 2018, Mother filed a second notice of objection, motion

to quash, and motion for attorney fees regarding Father’s subpoena to Amy.

According to Mother’s second notice of objection, motion to quash, and motion for

attorney fees, on 1 October 2018 Father had issued a subpoena for Amy to testify at

the 26 October 2018 hearing. As noted, the hearing on custody modification and

contempt resumed on 26 October 2018.

At the beginning of the hearing, the trial court heard the motions to quash the

subpoena for Amy. During the third and final day of hearing in October, the focus

6 Ms. Thomas’s responses to the written questions were due one day before the order was actually

entered.

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Opinion of the Court

regarding subpoenas and motions to quash was primarily on Amy and not Ms.

Thomas. Father argued that Amy had a right to be heard by the trial court when the

court was determining custody. Father also noted he had requested a deposition from

Ms. Thomas specifically to eliminate the need for the child to testify, but since the

trial court had not allowed Father to depose Ms. Thomas and limited discovery to a

written deposition with limited questions, his only way to present this evidence was

through testimony of Amy. Father argued,

So I want to be crystal clear, though, about what we have -

- and make it clear for the record about what we have

continually asked of this Court.

First off, we asked for Ms. Thomas to sit for a

deposition precisely for the reason that perhaps her

testimony would alleviate the possibility of having [Amy]

even being involved in this matter. Ms. Thomas objected

and, more importantly, [Mother] joined in that objection.

And the Court limited us to these written interrogatories.

Father’s counsel then noted he was simply requesting Amy to talk to the trial court

in chambers, without counsel or parties present, but as Mother would not agree to

this procedure, he had issued the subpoena to Amy. Father’s attorney noted since he

had never talked to Amy, he did not know what she would say, but that “I know this:

That you -- from the comments that you’ve made from the bench, both parties have

exposed this child to stuff that they shouldn’t have based upon Ms. Thomas’ notes.”7

7 This Court has reviewed the records under seal, and Father’s counsel was correct.

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Opinion of the Court

Mother’s counsel argued that there was no need for Amy to testify because the

trial court had “all of Katie Thomas’ records; so you have everything that she would

have talked about. You’ve already seen that.” Mother’s counsel argued,

So when they say, “We tried to avoid even talking

about bringing the child by getting these things from Ms.

Thomas,” Your Honor already has everything Ms. Thomas

could have presented. I mean, her notes are her most

secret thing, I would think, with a counselor.

When they say that they want her to come in here

and speak with you with no one present, that -- that goes

right back to my concern because the recordings[8] have

shown that, you know, Mr. Daly has told this child false

things about court orders, you know, made statements

about my client breaking court orders, about provisions

that were not even in the order -- you know, that her

parents can only do exchanges, that she could let her go

stay overnight, you know, that she has control in this

matter -- and that’s not the case.

Thus, Mother argued that Ms. Thomas’ records were directly relevant to the issues

in dispute, both as to modification of custody and to her motions to hold Father in

contempt, but since the trial court already had the information in the records –

reviewed in camera and still under seal – there was no need for Father and his counsel

to be able to review this relevant information or to present evidence from Ms. Thomas

or Amy.

After Father testified further, his counsel again raised his request to have Amy

testify, as the trial court had not yet made a final ruling on the motions to quash.

8 Both parties had produced phone recordings as part of their evidence including conversations

between Amy and Father.

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Opinion of the Court

Counsel and the trial court had an extensive colloquy. Father’s counsel noted he

could not say what the child would say, since he had never spoken to her, but he noted

if the trial court determined she was of suitable age and discretion, the trial court

was required to consider her wishes regarding the custodial schedule, even though

the court would not be bound by her wishes. In addition, Amy could be able to address

whether either parent was improperly influencing her or saying things to her in

violation of the custody order, as alleged by the contempt motions. Father’s counsel

also argued if the trial court granted the motion to quash, he would make an offer of

proof to preserve the issue for appeal. Father noted that an offer of proof is required

under Rule 43 of the Rules of Civil Procedure:

(c) Record of excluded evidence.--In an action tried before a

jury, if an objection to a question propounded to a witness

is sustained by the court, the court on request of the

examining attorney shall order a record made of the answer

the witness would have given. The court may add such

other or further statement as clearly shows the character

of the evidence, the form in which it was offered, the

objection made and the ruling thereon. In actions tried

without a jury the same procedure may be followed, except

that the court upon request shall take and report the

evidence in full, unless it clearly appears that the evidence

is not admissible on any grounds or that the witness is

privileged.

N.C. Gen. Stat. § 1A-1, Rule 43(c) (2017) (emphasis added). Based upon Rhew v.

Felton, 178 N.C. App. 475, 488, 631 S.E.2d 859, 868 (2006), Father argued allowing

an offer of proof is not a discretionary decision, but the trial court is required to allow

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Opinion of the Court

the offer of proof to be made in some manner, even if the trial court does not hear the

evidence personally:

Rule 43(c) thus requires the trial court, upon

request, to allow the insertion of excluded evidence in the

record. In the present case, the trial court allowed plaintiff

to introduce the excluded evidence into the record.

Plaintiff cites no binding authority, and we find none, that

requires a trial court to personally take an offer of proof.

Therefore, the trial court’s failure to personally consider

plaintiff’s offer of proof was not prejudicial.

Id. (citation and quotation marks omitted).

Mother’s counsel did not argue an offer of proof regarding the evidence from

Amy would be irrelevant or privileged. See generally N.C. Gen. Stat. § 1A-1, Rule

43(c). Instead, Mother’s counsel argued requiring Amy to come to court or any other

setting to give an offer of proof would cause the same trauma to her as testifying.

Mother’s counsel argued:

[a]nd now what I hear is that “If we don’t like your

ruling, we are going to get the testimony of this child and

are going to take it up,” and that is -- to me, is outrageous

because this is all supposed to be the best interests of this

child.

She is under the care of a therapist, a therapist that

you were so concerned about -- you know, you kept those

records to yourself. They tried to depose her, did the

interrogatories, all in the hopes of not even involving this

child.

I mean, I don’t know what else they could have

gotten from her that you don’t have as evidence before Your

Honor, and now saying that they are just going to go to a

transcript and -- if they don’t like your ruling.

I’ve just never seen anything like it.

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Opinion of the Court

Ultimately, the trial court allowed Mother’s motions to quash the subpoenas

and Amy did not testify. Furthermore, the trial court denied Father’s request to make

an offer of proof regarding Amy’s testimony, either in court or by a procedure outside

the courtroom.

Based upon the three hearing dates in September and October, on 28 January

2019, the trial court entered an interim memorandum of order for custody which

granted Mother sole “care custody and control” of the child and suspended Father’s

visitation and telephone contact until he had a psychological evaluation. Father

timely appealed the 28 January 2019 interim memorandum of order (“Interim

Memo”). On 27 February 2019, Father appealed the Interim Memo and “any other

immediate orders involving the merits and necessarily affecting said Order, including

but not limited to the March 7, 2018 order concerning Katie Thomas.” Ultimately, on

10 June 2019, the trial court entered an “ORDER MODIFYING PERMANENT

CHILD CUSTODY ORDER, GRANTING MOTIONS TO QUASH[9], DENYING

MOTIONS FOR CONTEMPT, AND DENYING OFFER OF PROOF” (“Permanent

Order”). The Permanent Order denied all six contempt motions filed by Mother and

Father against the other. The trial court modified custody, granting full legal and

9 The order only has a decree regarding the motions to quash Amy’s subpoenas. The decree does not

address Ms. Thomas’ records or testimony.

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Opinion of the Court

physical custody to Mother and denied Father any visitation or contact with Amy.

The Permanent Order also addressed the motions to quash:

46. After hearing all of the evidence in this matter, the

Court grants the Defendant’s Motion to Quash the

Subpoena 2 issued for the appearance of the minor

child that was filed on October 15, 2018.

47. Upon rendering the ruling on the motion to quash,

the Plaintiff’s counsel made an oral motion to make

an Offer of Proof pertaining to the minor child’s

testimony.

48. The minor child’s presence in court and testimony

will likely cause her great emotional distress. The

Plaintiff’s counsel argued that the minor child had a

right to testify in this matter; however, the minor

child has not expressed any desire to participate in

the custody proceedings and it is the Plaintiff, not

the minor child, who wishes for the minor child to be

involved.

49. Due to parental conflict, divorce and custody

proceedings, the Order provided that the Defendant

was to obtain any counseling recommended for the

minor child to assist her in dealing with any issues

she may have arising from the separation and

divorce of the parties. The minor child began seeing

her therapist, Katie Thomas, shortly after the Order

was entered and is still under her care.

50. Pursuant to prior orders entered in this matter Ms.

Thomas produced her records for the minor child to

the Court under seal for the review of the Court only.

Neither party, nor their counsel, were granted

access to the records, due to the high conflict nature

of this matter. The Plaintiff’s counsel, pursuant to

orders of this court, did serve Ms. Thomas with

written interrogatories, which she responded to and

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Opinion of the Court

her responses were admitted into evidence without

objection. Ms. Thomas’ responses expressed concern

for the minor child being involved in discussions

relating to the nature of this proceeding.

51. The Plaintiff has been aware that the minor child

has been under the care of Ms. Thomas since she

began therapy and has not had any involvement

with her therapy with the exception of contacting

Ms. Thomas on one occasion to question her about

things unrelated to the minor child’s mental

wellbeing as outlined in her response.

52. The Plaintiff, through his counsel, was unable to

articulate a specific forecast of what the minor

child’s testimony would be.

53. The Plaintiff, through his counsel, represented that

the purpose in offering the minor child’s testimony

was so that the Court may hear the minor child’s

wishes with respect to the current custodial

schedule whether she desired any changes, whether

either party is trying to unduly influence the minor

and/or unfairly share information regarding the

court process with the minor child and whether the

minor child can clarify factual disputes regarding

the parties’ statements and/or the minor child’s

responses to the parties’ statements.

54. Plaintiff’s attorney represented that he had no idea

what the minor child might say.

55. Plaintiff’s attorney could not inform the Court of the

nature or content of the evidence being offered.

56. Plaintiff’s attorney did not describe the purpose of

the evidence beyond what the minor child’s

perspective might be.

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Opinion of the Court

57. Plaintiff’s attorney did not explain what

consequential facts the evidence is expected to

prove.

58. Plaintiff’s attorney offered no forecast that the

minor child’s testimony would provide the Court an

exclusive or better basis on which to make a ruling.

59. Plaintiff’s attorney did not articulate or forecast how

the minor child’s testimony would provide the court

with more information regarding the evidence on

which to make a more complete or even a merely

adequate basis for a ruling.

60. Plaintiff’s request to bring the minor child in to

testify in order to make an offer of proof as to what

the minor child would have said if called to testify is

denied.

The trial court’s decree had 14 provisions: Mother’s first motion to quash

Amy’s subpoena was granted; Mother’s second motion to quash Amy’s subpoena was

granted; Father’s oral motion to make an offer of proof regarding Amy’s testimony

was denied; Mother’s motion to modify custody was granted; Mother was given sole

legal and physical custody of Amy; Father’s visitation and telephone contact was

suspended, including any contact through a third party on his behalf; Father was

ordered not to contact any third party, such as teachers and counselors, in an attempt

to gain information about Mother and Amy, although he was allowed access to Amy’s

“educational and medical records for informational purposes only[;]” Mother was

ordered to notify Father of any emergencies regarding Amy via email; Father was to

“submit to and obtain a complete psychological evaluation” provided “by a licensed

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Opinion of the Court

psychiatrist and/or psychologist” both parties agreed upon, and to “complete any and

all recommended education and treatment[;]” Father was not to file a motion to

establish visitation until “completion of the full psychological evaluation and any and

all recommended education and treatment[;]” Amy should continue to see Ms.

Thomas, and neither parent would “have access to Ms. Thomas’ therapy session notes

and/or confidential records, Ms. Thomas” was entitled to give the parties general

information that did not interfere with her relationship with Amy, and Father was

only to contact Ms. Thomas via email for “reasonable” purposes; all contempt motions

were denied; this Permanent Order supersedes all of the prior custody orders; and

law enforcement officers shall assist to “carry out the terms of this Court order.”

Father timely appealed from this order and had previously appealed from the interim

memorandum of order. Thus, Father appealed the Interim Memo and Permanent

Order. As the Permanent Order superseded the Interim Memo, and as all of Father’s

issues are properly addressed by considering the Permanent Order, we address only

that order.

II. Offer of Proof of Child’s Testimony

While Father’s brief raises four issues challenging the modification of custody,

all issues arise from the trial court’s denial of his request to present testimony and

evidence from Ms. Thomas and Amy. As Father noted in his argument before the

trial court, “there’s a couple black holes in this case. One black hole is we don’t know

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Opinion of the Court

what [Amy] would say. But the other black hole that the counsel don’t know is what’s

in Katie Thomas’ notes.” This Court is confronted by the same black hole, although

unlike Father, we do have the benefit of in camera review of Ms. Thomas’ records.

We turn first to Amy.

Father argues the trial court erred by denying not only his request to present

any evidence from Amy by quashing the subpoena but also by denying his request to

make an offer of proof, either in court or in another setting outside court. Because

the trial court did not allow Father to make an offer of proof of any sort, we are unable

to determine if the trial court abused its discretion in quashing the subpoena.10 We

will therefore address Father’s second issues on appeal, the trial court’s refusal to

allow Father to make an offer of proof.

Father contends the trial court erred in not following the requirement of Rule

43(c) and allowing him to make an offer of proof. We review whether the trial court

failed to follow the mandate of Rule 43 de novo. See State v. Johnson, 253 N.C. App.

337, 345, 801 S.E.2d 123, 128 (2017) (“Defendant alleges a violation of a statutory

mandate, and alleged statutory errors are questions of law and as such, are reviewed

de novo.” (citation, quotation marks, and brackets omitted)).

10 “The trial court’s evidentiary decisions, including a decision granting a motion to quash a subpoena

on grounds that it is unduly burdensome, also will not be disturbed absent a showing of abuse of

discretion.” In re A.H., 250 N.C. App. 546, 553, 794 S.E.2d 866, 872 (2016).

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Opinion of the Court

On appeal, Mother stresses that Father failed to make an offer of proof as to

Amy’s testimony, so he cannot raise the exclusion of her testimony on appeal. In fact,

Mother argues that the trial court gave Father

multiple opportunities to make his offer, by making the

substance of [Amy]’s testimony apparent from the record

through the testimony of his own witness or on cross-

examination of the opposing party, or making an informal

offer as described by the Court in Martin – however, he

failed to do so. In his failure, he forfeited the right of the

Plaintiff to assign error to the court’s decision on appeal.

In State v. Martin, this Court noted that an offer of proof may be formal, by

presenting the actual proposed testimony of the witness, or informal, by making a

specific forecast of what the testimony would be from the witness. See State v. Martin,

241 N.C. App. 602, 605, 774 S.E.2d 330, 333 (2015) (“In the present case, Defendant’s

counsel made an informal offer of proof; that is, he represented to the court the

content of the testimonies his witnesses would provide. In contrast, a formal offer of

proof is made when counsel calls the witnesses to provide their proposed testimonies

at the hearing. . . . Our Supreme Court has never held that a formal offer of proof is

the only sufficient means to make an offer of proof: We wish to make it clear that

there may be instances where a witness need not be called and questioned in order to

preserve appellate review of excluded evidence. . . . Our Court has recently held that

an informal offer of proof may be sufficient in certain situations to establish the

essential content or substance of the excluded testimony.” (citations and quotation

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marks omitted)).11 Thus, Mother contends that Father, by failing to make even an

“informal” offer of proof regarding the substance of Amy’s testimony, should not be

allowed to raise this issue on appeal. But the Permanent Order belies Mother’s

argument as Father was denied the opportunity to make any type of offer of proof.

Both the caption of the order -- “ORDER MODIFYING PERMANENT CHILD

CUSTODY ORDER, GRANTING MOTIONS TO QUASH, DENYING MOTIONS

FOR CONTEMPT, AND DENYING OFFER OF PROOF” -- and the decree of the

order -- “The Plaintiff’s Oral Motion to make an Offer of Proof pertaining to the minor

child’s testimony is denied” -- specifically deny Father’s request to make an offer of

proof in any form. (Emphasis added.)

Mother further cites to Rule 601(b) of the Rules of Evidence, apparently

implying that Amy may not have been competent to testify. See N.C. Gen. Stat. § 8C-

1, Rule 601(b) (2017) (“A person is disqualified to testify as a witness when the court

determines that the person is (1) incapable of expressing himself or herself concerning

11 In Martin, this Court also noted that if the significance of the evidence is obvious from the record, a

specific offer of proof may not be necessary: “Our Supreme Court has held that to preserve for appellate

review the exclusion of evidence, the significance of the excluded evidence must be made to appear in

the record and a specific offer of proof is required unless the significance of the evidence is obvious

from the record.” Id. at 605, 774 S.E.2d at 332-33 (citation and quotation marks omitted). Of course,

while the relevancy of Amy’s testimony is obvious as the child at issue in the custody matter, the

significance is not, as Father’s counsel himself noted, having never spoken with Amy it was not clear

what if anything she would have to say. Without the significance of the offer of proof being obvious, it

“must be made to appear in the record” so that this Court may properly analyze whether the trial court

abused its discretion in allowing Mother’s motions to quash. Id.

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the matter as to be understood, either directly or through interpretation by one who

can understand him or her, or (2) incapable of understanding the duty of a witness to

tell the truth.”). But Mother did not argue incompetency before the trial court nor

was it a basis the trial court found for denying the request for an offer of proof.12

Furthermore, because no evidence was presented as to Amy’s competency as a

witness, the trial court -- by not allowing an offer of proof -- had no basis upon which

to make such a determination. We fully appreciate that the high level of conflict

between Mother and Father in this case has no doubt been traumatic to Amy, and

Father’s counsel, even in requesting to make his offer, addressed Father’s concerns

about Amy by noting his efforts to protect her: He attempted to avoid subpoenaing

Amy by deposing Ms. Thomas; he would prefer Amy only testify without the parties

or even counsel present; he was willing to have Amy questioned outside of the court.

Ultimately, the trial court quashed the subpoena and refused to allow any sort of offer

of proof based upon potential trauma to Amy. We agree Amy’s wellbeing is an

important concern, but it is a not a legal basis to disregard the mandate within Rule

43.

12 Mother argued, “Your Honor has the right to say, ‘You know, based on everything this child has

been put through, I don’t find that she’s a competent witness.’” But being “put through a lot” is not a

legal basis for incompetency as a witness nor did Mother present any evidence upon which the trial

court could make a finding regarding Amy’s competency as a witness. Further, our review of Ms.

Thomas’s records does not suggest any reason Amy may be incompetent as a witness as this is defined

under Rule 601, although on remand, the trial court may certainly consider the issue if it is raised.

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As we have determined there was no evidence presented nor legal basis noted

for denying Father’s request to make an offer of proof, we conclude the trial court

erred as counsel at trial must be allowed to make an offer of proof under these facts.

See N.C. Gen. Stat. § 1A-1, Rule 43(c). The court may deny an offer of proof only if it

“clearly appears that the evidence is not admissible on any grounds or that the

witness is privileged[:]”

[i]n an action tried before a jury, if an objection to a

question propounded to a witness is sustained by the court,

the court on request of the examining attorney shall order

a record made of the answer the witness would have given.

The court may add such other or further statement as

clearly shows the character of the evidence, the form in

which it was offered, the objection made and the ruling

thereon. In actions tried without a jury the same procedure

may be followed, except that the court upon request shall

take and report the evidence in full, unless it clearly appears

that the evidence is not admissible on any grounds or that

the witness is privileged.

Id. (emphasis added). “As used in statutes, the word ‘shall’ is generally imperative

or mandatory.” Silver v. Halifax County Board of Commissioners, 371 N.C. 855, 863,

821 S.E.2d 755, 761 (2018) (citation and quotation marks omitted). “Rule 43(c) thus

requires the trial court, upon request, to allow the insertion of excluded evidence in

the record.” Nix v. Allstate Ins. Co., 68 N.C. App. 280, 282, 314 S.E.2d 562, 564

(1984).13 Here, the trial court was required to allow the offer of proof, unless “it

13 Nix continues, “The trial judge, however, is not required to allow insertion of an answer in the record

if it clearly appears that the proffered testimony is not admissible on any grounds. The trial judge,

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DALY V. KELLY

Opinion of the Court

clearly appear[ed] that the evidence [wa]s not admissible on any grounds or that the

witness [wa]s privileged[,]” and neither inadmissibility nor privilege were grounds

raised by the Mother in challenging Father’s request to make an offer of proof or

mentioned in the Permanent Order itself as a basis for denying Father’s request.

N.C. Gen. Stat. § 1A-1, Rule 43.

Under similar circumstances, in State v. Brown, 116 N.C. App. 445, 447, 448

S.E.2d 131, 132 (1992), our Court followed the procedure laid out by the Supreme

Court when counsel has been denied this “fundamental” part of the trial process:

It is fundamental that trial counsel be allowed to

make a trial record sufficient for appellate review. In State

v. Chapman, our Supreme Court stated:

We regard the trial judge’s refusal to allow

counsel to complete the record as a

regrettable judicial mistake. A judge should

be loath to deny an attorney his right to have

the record show the answer a witness would

have made when an objection to the question

is sustained. In refusing such a request the

judge incurs the risk (1) that the Appellate

Division may not concur in his judgment that

the answer would have been immaterial or

was already sufficiently disclosed by the

record, and (2) that he may leave with the

bench and bar the impression that he acted

arbitrarily.

Counsel here was prevented from making a sufficient

record because the trial court refused to allow the

though, should be loath to deny an attorney his right to have an excluded answer placed in the record

because the Appellate Division may not concur in his judgment that the proffered testimony is clearly

inadmissible.” Id. (citations and quotation marks omitted). But here no grounds for inadmissibility

were raised before the trial court.

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Opinion of the Court

defendant to make an offer of proof regarding the

testimony of Ms. Russell.

Without having the substance of Ms. Russell’s

proposed testimony, we cannot determine whether the

defendant was prejudiced by the trial court’s refusal to

allow Ms. Russell to testify. The record must be complete

in order that the defendant have meaningful appellate

review.

Id. (citation omitted).

On remand, if Amy is again subpoenaed to testify and this issue arises again

and the trial court determines there is a legal basis to quash the subpoena, we note

that the method for making an offer of proof is within the discretion of the trial court.

The offer could be taken in a setting outside the courtroom but both to preserve the

rights of Father and to provide a proper record for appellate review, the offer itself is

required. Only with the offer of proof would an appellate court be able to address

Father’s first and fourth issues on appeal – whether the trial court abused its

discretion in allowing Mother’s motions to quash and whether “many” of the trial

court’s findings of fact are not supported by competent evidence “given the court’s

legal error in not hearing from” Amy. (Original in all caps.)

III. Denial of Access to Therapy Records

We turn now to Father’s third issue on appeal regarding Ms. Thomas’ sealed

records. This issue is related to the first, as Ms. Thomas’s notes are the only

documentation of Amy’s potential testimony, but Father was not allowed to have any

access to this information. The only issue Father raises as to Ms. Thomas on appeal

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Opinion of the Court

is that neither party was provided her therapy notes. Thus, this opinion is not to be

construed as a substantive determination on any of the other issues regarding Ms.

Thomas, such as the fact that Mother raised the motion quash on her behalf rather

than Ms. Thomas raising it herself; the trial court’s decision to allow Mother’s motion

to quash on Ms. Thomas’ behalf; and or the limited questions the trial court allowed.

The only issue we are addressing regarding Ms. Thomas is the one Father brings

forth on appeal: “Did the trial court err in sealing records of the child’s counselor

when the court’s order fails to show the court considered alternatives to a complete

sealing of the records?” (Original in all caps.)

Both Mother and Ms. Thomas contend on appeal that Father failed to properly

preserve the issue regarding Ms. Thomas’ notes. Ms. Thomas admits that Father

provided a notice of appeal to the 7 March 2018 “order concerning Katie Thomas” but

then contends Father thereafter waived this issue by failing to argue it in his brief.

Mother, in a one paragraph argument, also makes a similar waiver argument to Ms.

Thomas and does not substantively address the issue of sealing the notes. But the

only reason both Ms. Thomas and Mother addressed the issue of the sealed notes in

their briefs is because Father did address it in his brief. Neither Ms. Thomas nor

Mother have raised any valid issues with preservation, such as a failure to raise the

issue with the trial court or a defective notice of appeal, and thus we turn to the

substantive issue raised by Father.

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Opinion of the Court

Father contends “the trial court abused its discretion in not providing the notes

of [Amy]’s counselor to counsel for the parties[.]” (Original in all caps.) The trial

court’s 7 March 2018 order is the first addressing the issues arising around the

testimony and documents to be provided by Ms. Thomas; in that order, the trial court

denied Father’s motion to compel, allowed Mother’s motion for a protective order,

ordered Ms. Thomas “to provide a copy of [Amy]’s medical records under seal to the

Court for its review, in camera, within (14) days from the entry of this order[,]” and

instructed Father to not depose Ms. Thomas “until such time as the Court has

reviewed the records and determined if the deposition shall occur at a future time

and under what conditions[.]” The trial court also decreed that the order was issued

“without prejudice, as to” Father.

At a hearing on 11 April 2018 to discuss Ms. Thomas’ testimony and notes the

trial court noted it had reviewed the records and was concerned because “this child

trusts this therapist and I don’t want that to be destroyed at all.” The trial court

explained it was leaning toward allowing a deposition but not for “any information

that would harm” Amy’s trust but rather for “her opinion as to where we are with the

child needing to or not needing to spend more time with Dad.” Father’s attorney then

explained he was simply trying to respond to allegations made in the motions for

contempt and to modify custody regarding statements made by Amy and his only

route for doing that was Amy, an option he was trying not to exercise; instead, he was

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Opinion of the Court

hoping to explore this information with Ms. Thomas to avoid involving Amy. After

hearing from all three attorneys involved, the trial court determined it would not be

releasing the records in any manner, not even by limiting access to counsel. The basis

of the trial court’s decision against releasing records was the therapeutic relationship

and the potential harm that may come to Amy from releasing the records.14

Thereafter, on 20 September 2018, the trial court determined Ms. Thomas would

“submit to a written deposition” and then provided the questions to be answered; this

order did not address sealing records. The trial court then entered its pretrial order

which did not address Ms. Thomas and then it entered the Interim Memo and

Permanent Order. As to Ms. Thomas, the Permanent Order stated,

49. Due to parental conflict, divorce and custody

proceedings, the Order provided that the Defendant

was to obtain any counseling recommended for the

minor child to assist her in dealing with any issues

she may have arising from the separation and

divorce of the parties. The minor child began seeing

therapist, Katie Thomas, shortly after the Order was

entered and is still under her care.

50. Pursuant to prior orders entered in this matter Ms.

Thomas produced her records for the minor child to

the Court under seal for the review of the Court only.

Neither party, nor their counsel, were granted

access to the records, due to the high conflict nature

of this matter. The Plaintiff's counsel, pursuant to

orders of this court, did serve Ms. Thomas with

written interrogatories, which she responded to and

14 It is not clear on the record before us how allowing the parties’ counsel some form of access to records

could impair Amy’s trust in her therapist, since this access could not harm Amy’s trust unless she is

made aware of it.

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Opinion of the Court

her responses were admitted into evidence without

objection. Ms. Thomas’ responses expressed concern

for the minor child being involved in discussions

relating to the nature of this proceeding.

51. The Plaintiff has been aware that the minor child

has been under the care of Ms. Thomas since she

began therapy and has not had any involvement

with her therapy with the exception of contacting

Ms. Thomas on one occasion to question her about

things unrelated to the minor child's mental

wellbeing as outlined in her responses.

The trial court then decreed as to Ms. Thomas:

The minor child shall continue counseling with Katie

Thomas. Neither party shall have access to Ms. Thomas’

therapy session notes and/or confidential records. Ms.

Thomas shall be entitled to provide the parties with

general information regarding the minor child’s counseling

so long as contact with the parties does not interfere with

her therapeutic relationship with the minor child. The

Plaintiff shall only contact Ms. Thomas via email to inquire

as to the progress of the minor child so long as said contact

is reasonable and limited in duration and is not used to

harass and/or interfere with the minor child’s therapy.

“Under the common law the decision to grant or deny access is left to the sound

discretion of the trial court, a discretion to be exercised in light of the relevant facts

and circumstances of the particular case.” France v. France, 209 N.C. App. 406, 414,

705 S.E.2d 399, 406 (2011) (citation, quotation marks, and brackets omitted). In

Raper v. Berry, the trial court spoke with a minor in chambers without counsel or

parties present, and the exclusion of the parties and counsel was challenged on

appeal:

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Opinion of the Court

Did the court commit error in conferring with Judith

Ann Raper in the absence of parties and counsel during the

pendency of the proceeding? Her affidavit was before the

court and the findings show that great weight was attached

to her views and feelings, and properly so. However, in a

court proceeding all parties are entitled to be present at all

of its stages so that they may hear and refute if they can. In

the Gibbons case the court conferred with the child whose

custody was at issue and with others in the absence of

parties and counsel. This Court held [245 N.C. 24, 95

S.E.2d 88]: “The court committed error in receiving

testimony from witnesses without affording petitioner an

opportunity to be present and know what evidence was

offered.” It is true witnesses other than the child were

examined in the Gibbons case, but the error was not in the

number but in the fact that any witness was so examined.

While we recognize that in many instances it may be

helpful for the court to talk to the child whose welfare is so

vitally affected by the decision, yet the tradition of our

courts is that their hearings shall be open. The

Constitution of North Carolina so provides. Article I,

Section 35. The public, and especially the parties are

entitled to see and hear what goes on in the courts. That

courts are open is one of the sources of their greatest

strength. There is no suggestion that the able and

conscientious judge was improperly influenced by the

private interview but the petitioner’s right to hear all that

was offered in his case must not be denied him.

246 N.C. 193, 194–95, 97 S.E.2d 782, 783–84 (1957) (emphasis added) (citations

omitted); contrast Cox v. Cox, 133 N.C. App. 221, 227, 515 S.E.2d 61, 66 (1999)

(concluding that a party was not prejudiced when precluded from an “in-chambers

interview” because counsel was present to represent them: “The attorneys’ presence

adequately protects the parties’ rights and interests”).

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Opinion of the Court

Here, Father’s “right to hear all that was offered in his case” was denied him

as neither he nor his attorney was allowed to view Ms. Thomas’ notes.15 See Raper,

246 N.C. at 195, 97 S.E.2d at 784. We conclude the trial court abused its discretion

in precluding counsel from any access to Ms. Thomas’s notes. The trial court may

limit the parties’ access and may order that the parties not copy or disclose the

contents of the records to others, but they must be allowed to review the records in

some manner. In addition, the fact that the case is a “high conflict” case does not

justify the complete denial of access by Father or his counsel to Ms. Thomas’ notes.

Instead, as Father’s counsel repeatedly argued, he needed access to the notes in the

hope of avoiding a need to call Amy as a witness, thus avoiding any potential trauma

to Amy from having to come to court or answer questions in an offer of proof. We

appreciate the trial court’s desire to protect Amy, but Father must also be allowed to

prepare and present his case and to defend himself.

We also note Father has not raised any objection to the trial court’s sealing of

the notes so they are not available to the public in the court file. Father never

requested that the records not be sealed as to the public, and it is certainly within the

trial court’s discretion to protect the child’s therapy medical records from public

access, but that is not the issue presented in this case. On remand, Amy’s therapy

15 On appeal, Father only challenges the trial court’s refusal to provide access to counsel and we do

not address whether further access by the parties would be required under these facts or

circumstances.

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DALY V. KELLY

Opinion of the Court

records remain sealed as to public access, but the trial court must allow some form of

access to the parties or their counsel.

IV. Conclusion

Because the trial court did not allow Father to make an offer of proof of Amy’s

potential testimony in any form, we are unable to address the substantive arguments

regarding the trial court’s order regarding the motion to quash the subpoena to Amy.

Because the trial court erred in denying Father the right to make an offer of proof

regarding Amy’s testimony and in denying Father any form of access to Ms. Thomas’s

records, and because the trial court specifically relied upon Ms. Thomas’s records in

making the findings of fact and entering the modification of custody order on appeal,

we must reverse and remand the 10 June 2019 order as to modification of custody for

further proceedings. Father did not address the portions of the order denying both

his and Mother’s motions for contempt on appeal, so we affirm the order to the extent

of the denial of the motions for contempt. On remand, before proceeding to a new

hearing regarding Mother’s motion to modify custody, the trial court shall hold a

hearing to address the parties’ access to Ms. Thomas’ notes and, if requested by either

party, her testimony either in a deposition or at trial. If necessary on remand, the

trial court shall also address Father’s subpoena to Amy and if the subpoena is

quashed, the trial court shall allow Father to make an offer of proof as required by

Rule 43 of the Rules of Civil Procedure.

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Opinion of the Court

AFFIRMED in part; REVERSED and REMANDED in part.

Judges MURPHY and BROOK concur.

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