Collins v. Collins

• Decision Date: 29 June 1995
• Docket Number: No. 01-91-00782-CV,01-91-00782-CV
• Citation: 904 S.W.2d 792
• Parties: Dana Lynn COLLINS, Appellant, v. Glenn Samuel COLLINS, III, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 792

904 S.W.2d 792

Dana Lynn COLLINS, Appellant, v. Glenn Samuel COLLINS, III, Appellee.

No. 01-91-00782-CV.

Court of Appeals of Texas Houston (1st Dist.).

June 29, 1995.

Rehearing Overruled July 27, 1995 and

Aug. 31, 1995.

Maurice Bresenhan, Jr., Houston, for appellant.

J. Ken Nunley, Thomas Black, San Antonio, for appellee.

Before the Court en banc.

EN BANC OPINION ON MOTION FOR REHEARING

O'CONNOR, Justice.

Appellee filed a motion requesting this Court to hear this case en banc. On rehearing, the Court sitting en banc grants his motion, withdraws the panel opinion, and issues this in its stead. We reverse and remand for a new trial on the issues of custody, the division of property, the assessment of statutory damages for violations of the federal and state wiretap statutes, and attorney fees. We affirm the granting of the divorce and the tort judgment of $15,000.

Fact Summary

This is an appeal from a final decree of divorce between appellant, Dana Lynn Collins (wife), and appellee, Glenn Samuel Collins (husband). The entire 19-year marriage of this couple was characterized by spousal abuse, affairs by both parties, separations, and reconciliations. The couple married when the wife was 16 years old. She worked while her husband attended college acquiring masters and doctoral degrees. After college, the husband developed a very successful business. They were granted a divorce on December 13, 1990.

In answer to 11 questions, the jury recommended appointment of the husband as sole managing conservator of the minor child; valued a group of businesses at $2,189,482.90, one-half of which was the marital community estate's major asset; found for the wife in a tort cause of action against the husband based on an illegal wiretap of her telephone; found the husband had "intercepted" the wife's telephonic communications; and determined the amount of the wife's attorney fees.

In the judgment, the trial court:

(1) appointed the husband as sole managing conservator of the minor child;

(2) appointed the wife as sole possessory conservator of the minor child;

(3) awarded the wife a $15,000 judgment on her tort claim for spousal abuse;

(4) awarded the wife, for her community interest in a group of businesses, owelty in the sum of $342,000, at six percent interest, to be paid in monthly installments of $4,000, secured by one-half of the husband's shares in CIC Agency, Inc., one of the businesses; and

(5) ordered each party to pay his or her respective attorney fees and court costs.

The wife appeals the jury's valuation of the community property, the custody determination of the couple's minor child, the admission into evidence of tapes from the illegal wiretapping, the denial of statutory damages for illegal wiretapping, the denial of attorney fees, the equitable division of the parties' community estate, the possession order, and the owelty award.

A. Violation of the Wiretap Statutes ¹

In point of error 3(B)-(F), the wife contends she is entitled to statutory damages because of the illegal wiretaps.

The wife contends that certain tape recordings were obtained by the husband in violation of 18 U.S.C. §§ 2510-2521 ("the federal wiretap statute") and TEX.CIV.PRAC. & REM.CODE §§ 123.001-123.004 ("the state wiretap statute"). The husband argues that spouses are exempt from the wiretap prohibitions in both statutes. He argues he had a right to tape the conversations, and he had the right to use the tapes in the divorce proceeding.

The federal wiretap statute prohibits the interception and use of illegally intercepted communications. 18 U.S.C. §§ 2510-2521. Under section 2520(a), any person whose communication is intercepted, disclosed, or intentionally used in violation of the statute, is entitled to recover in a civil action.

The state wiretap statute prohibits the use of the illegally intercepted communication. Section 123.004 of the Civil Practice and Remedies Code states that a party whose communication is intercepted may obtain an injunction prohibiting the "divulgence or use of information obtained by an interception." The illegal interception of a conversation and the use of the conversation is a second degree felony. TEX.PENAL CODE § 16.02(f).

Two Texas courts of appeals have held that the interception of a telephone conversation by a spouse is illegal. Kent v. State, 809 S.W.2d 664, 668 (Tex.App.--Amarillo 1991, pet. ref'd) (defendant violated former Tex.Penal Code § 16.02 by placing a wiretap on the wife's telephone); Turner v. PV Int'l Corp., 765 S.W.2d 455, 469-71 (Tex.App.--Dallas 1988), writ denied per curiam, 778 S.W.2d 865, 866 (Tex.1989). ²

Neither the state nor the federal wiretap statutes contain any exception for wiretaps between spouses. See Kent, 809 S.W.2d at 668 (Texas statute); Kempf v. Kempf, 868 F.2d 970, 973 (8th Cir.1989) (federal statute). In United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974), the Court said:

[T]he purpose of the legislation [18 U.S.C. § 2510] was effectively to prohibit ... all interceptions of oral and wire communications, except those specifically provided for in the Act....

(Emphasis added.)

Texas courts have long recognized both a common law and a constitutional right of privacy. State Employees Union v. Dep't of Mental Health, 746 S.W.2d 203, 205 (Tex.1987) (the right of privacy is implicit in the Texas Constitution); Billings v. Atkinson, 489 S.W.2d 858, 860 (Tex.1973) (a homeowner has a cause of action for illegal wiretap of residence based on the common-law right of privacy). Nothing in the Texas Constitution or our common law suggests that the right of privacy is limited to unmarried individuals.

Only two federal courts of appeals have held the federal wiretap statute exempts spouses from its prohibitions. Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir.1977); Simpson v. Simpson, 490 F.2d 803, 809 (5th Cir.1974). Those opinions have been widely criticized. See, e.g., Platt v. Platt, 951 F.2d 159, 160 (8th Cir.1989); Heggy v. Heggy, 944 F.2d 1537, 1539 (10th Cir.1991); Kempf, 868 F.2d at 972-73; Pritchard v. Pritchard, 732 F.2d 372, 374 (4th Cir.1984); United States v. Jones, 542 F.2d 661, 667 (6th Cir.1976); Walker v. Carter, 820 F.Supp. 1095, 1097 (C.D.Ill.1993); Nations v. Nations, 670 F.Supp. 1432, 1434-35 (W.D.Ark.1987); Flynn v. Flynn, 560 F.Supp. 922, 924-25 (N.D.Ohio 1983); Heyman v. Heyman, 548 F.Supp. 1041, 1045-47 (N.D.Ill.1982); Gill v. Willer, 482 F.Supp. 776, 778 (W.D.N.Y.1980); Kratz v. Kratz, 477 F.Supp. 463, 467-72 (E.D.Pa.1979); Comment, Interspousal Electronic Surveillance Immunity, 7 U. OF TOL.L.REV. 185, 185-212 (1975).

A court may consider the legislative history of a statute without making a finding that the statute is ambiguous. TEX.GOV'T CODE § 311.023. The legislative history of the federal wiretap statute indicates that Congress anticipated it would restrict the use of wiretap evidence in divorce cases. Senator Long, chair of the subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee, stated that the "three major areas in which private electronic surveillance was widespread were (1) industrial, (2) divorce cases, and (3) politics." Kempf, 868 F.2d at 973. Senator Hruska, a co-sponsor of the bill, commenting on the scope of the statute, noted that "[a] broad prohibition is imposed on private use of electronic surveillance, particularly in domestic relations and industrial espionage situations." S.Rep. No. 1097, 90th Cong., 2d Sess., reprinted in 1968 U.S.Code Cong. & Admin.News 2112, 2274; Kempf, 868 F.2d at 973.

A majority of the full court sitting en banc holds that spouses, as any other persons, have rights of privacy under both wiretap statutes. We sustain point of error 3(B)-(F).

B. The Wiretap Evidence at Trial

In point of error 2(A), the wife contends the court erred in refusing to grant her motion in limine made to exclude the illegally obtained tape recordings. In point of error 2(B), the wife contends the court erred in making the custody determination based on illegally obtained wiretap evidence.

Three separate instances of wiretap recordings were considered at trial. The first, referred to as the "Van Brocklin tape," involved one conversation between the wife and Van Brocklin, her paramour. The evidence shows that the husband installed a tape-recording device in the Collins' home in October of 1987 to record the wife's telephone conversations.

The second instance, referred to as the "post-order tapes," involved a conversation taped after March 22, 1990, when the husband was appointed sole temporary managing conservator of their minor child. In the "post-order" tapes, the husband recorded telephone conversations between the wife and the minor child. The husband used these recordings to impeach the wife during the trial on the issue of custody. The husband also gave the tapes to Dr. Hughes, the expert for the ad litem who testified that the husband should get custody of their child.

The third instance involved an allegation by the wife that the husband listened to her telephone calls with her lawyers. She decided he had listened to conversations with her lawyer because the husband preempted her filing of the divorce. At trial, the husband attempted to explain how he knew she was talking to a lawyer--that he saw the telephone bill. The calls to the lawyer were local, however, not long-distance calls, and the telephone bills showed only long-distance numbers.

1. Waiver--Van Brocklin Tape

The husband contends the wife waived her objections to the husband's testimony about the contents of the Van Brocklin tape because she only made a motion in limine to exclude it. The Court agrees. The trial court's ruling on a motion in limine does not preserve error. If the evidence is offered at trial, the party who wants to exclude it must object when it is offered. Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex.1963...