Dommer v. Dommer, 64A03-0409-CV-410.

Citation829 N.E.2d 125
Decision Date10 June 2005
Docket NumberNo. 64A03-0409-CV-410.,64A03-0409-CV-410.
PartiesMaryann DOMMER, Margaret McCarthy, Brenda K. Dommer, Michelle L. Swallow and Laura A. Guffey, Appellants-Plaintiffs, v. Steven W. DOMMER, Appellee-Defendant.
CourtSupreme Court of Indiana

Richard Cagen, Valparaiso, for Appellants.

George R. Livarchik, Chesterton, for Appellee.

OPINION

MAY, Judge.

Maryann Dommer ("Wife"), Margaret McCarthy, Brenda K. Dommer, Michelle L. Swallow, and Laura A. Guffey1 appeal the trial court's grant of summary judgment to Steven W. Dommer ("Husband").2 Wife and Friends raise the following consolidated and restated issues:

1. Whether the trial court erred when it held Husband could not be liable under 18 U.S.C. § 2520 ("the federal statute")3 for taping Wife's telephone conversations with Friends; and

2. Whether the trial court erred when it held Husband could not be liable under Ind.Code § 35-33.5-5-4 ("the state statute")4 for taping Wife's telephone conversations with Friends.

We reverse and remand.

FACTS AND PROCEDURAL HISTORY5

The parties agree to the following facts. Husband and Wife lived together in the home they jointly owned. After Husband's son came to live with them, Husband and Wife became concerned son was using illegal drugs. Husband and Wife decided to record son's telephone conversations to determine whether he was using drugs. On March 15, 2001, Husband and Wife obtained and installed equipment that would permit them to record telephone calls to and from their house without either of the parties to the conversation knowing the recording was happening. Husband then used that or similar equipment to record telephone conversations between Wife and Friends. Wife filed a petition for dissolution of marriage in September of 2003.

On January 23, 2004, Wife filed a complaint in which she alleged Husband recorded her conversations on a substantially continual basis from March 15, 2001 to July 1, 2003. She claimed Husband "used or attempted to use the information gathered from the wrongful recordings in the later filed action for dissolution" and he used the information gathered in the recordings "to alienate [Wife] from members of [Husband]'s family." (Appellee's App. at 13.)6 Wife asserted Husband's act subjected him, under both the federal and state statutes, to liability including liquidated damages, punitive damages, court costs, and reasonable attorney fees.

On May 21, 2004, Wife moved for summary judgment on her federal claim, alleging she was entitled to recovery under the federal statute based on the facts admitted by Husband. Husband responded to her motion on July 26, 2004.

On June 7, 2004, between the filing of Wife's summary judgment motion and Husband's response, Friends filed a civil complaint alleging substantially the same facts along with the fact that Husband had recorded their phone calls with Wife without their knowledge or permission. Friends asserted Husband is liable to them under the same statutes Wife cited. Husband moved to have Friends' cause consolidated with Wife's cause pursuant to Trial Rule 42, and the trial court granted that motion.

The trial court held a hearing on Wife's motion for summary judgment, and then granted summary judgment to Husband on both counts of Wife's complaint and both counts of Friends' complaint. The trial court explained its decision as follows:

I. Alleged Violation of I.C. 35-33.5-5-4

Plaintiffs allege in Count I of the complaint that [Husband] was in violation of I.C. 35-33.5-5-4 when he tape recorded phone conversations of [Wife] that took place in their joint residence. Plaintiff's Complaint, p. 2. Because of this violation, [Wife] requests damages to be collected pursuant to the statute. Id. While it is undisputed that [Husband] did in fact record the phone calls of his wife, he was not in violation of I.C. 35-33.5-5-4.

Indiana case law is unclear in defining what constitutes a violation of the Indiana State Wiretapping Act. The Wiretapping Act (I.C.35-33.5-5-4) has never been applied to prohibit wiretapping in the marital home. State v. Lombarde [sic], 738 N.E.2d 653, 660 (Ind.2000). In Re: Marriage of Lopp merely discusses the admissibility of recorded phone conversations in proceedings to dissolve a marriage. 268 Ind. 690, 378 N.E.2d 414 (1978). The case at bar was instituted as a separate action and the admissibility of the tapes in the proceedings has never been at issue. Apter v. Ross involved a father who was tape recording phone conversations between his son and his estranged wife. 781 N.E.2d 744 (Ind.Ct.App.2003). All of these cases involve other legal actions. The case at bar is different in that it is merely a case involving the wiretapping as an independent cause of action.

When used in a case involving a tort or a crime it appears the Indiana Wiretapping Statute allows, inter alia, for the recovery of damages. Had this case revolved around another issue, such as an alleged slander committed by [Husband], the tapes then would have been a necessary element of [Husband's] case. [Wife] could have then filed a valid claim under the Indiana Wiretapping Statute. However, just because a person is tape recorded does not automatically entitle that person to damages. The use of the tapes dictates what legal remedies are available to those who have been recorded. II. Alleged violation of [18] U.S.C. 2520

[Wife and Friends] allege that [Husband] was in violation of the [sic] 18 U.S.C[.] 2520 when he recorded phone conversations from a hidden location in his house. Plaintiff's Complaint p. 1. The facts are undisputed that [Husband] had installed a hidden tape recorded [sic] behind a water heater in his home to tape record his wife. Deposition of [Husband], p. 23-28. [Wife], [sic] alleges that this is a violation of 18 U.S.C[.] 2520, the federal wiretapping statute. Plaintiff's Complaint p. 3. [Husband] maintains that his actions were covered under an in home exception that allows a home owner to tape conversations in one's own home. Plaintiff's Memorandum of Law, p. 5.

The federal statute allows recovery for damages arising from wrongful phone recording. 18 U.S.C. 2520. However, an in-home exception making it legal for a home owner to record phone calls in the home has been carved out by case law. Scheib v. Grant, 22 F.3d, [sic] 149, 154-155 (7th Cir.1994). As the 7th Circuit has explained, the Federal Wiretap Act does not apply to tape recording calls within one's own home. Scheib v. Grant, 22 F.3d 149, 154-155 (7th Cir.1994). In Scheib, the 7th Circuit examined the legislative intent of the Federal Wiretap Act and determined that Congress did not intend the act to prohibit one from intercepting a family member's telephone conversation by a recording device in one's own marital home.

The federal wiretap act contains an exception making it legal for a business to record phone conversations. The Court in Scheib extended the business exception to the home as well. As the court explained:

Reading this extension phone exemption as a whole, then, it is no logical stretch to read this language as applying to a "subscriber's" conduct — or "business" — in raising his or her children. Congress might have spelled out in more precise detail the contours of the extension phone exemption; but its failure to do so does not relieve us of the obligation to give the statute a reading consistent with the probable intent of the legislature. Scheib at 154.

This in home exemption extends to the case at bar. Because [Husband] was engaged in protecting the welfare of his children, he was within the confines of the law when he recorded the phone conversations of his wife.

[Husband] was protected by the in home exception set forth by the Scheib court when he tape recorded conversations in his home. Clearly, the exception that the 7th Circuit found extends to this case. [Husband] was within his rights as a joint home owner with his wife to record conversations in the home. As joint owners, both were entitled under 18 U.S.C[.] 2520 to record conversations that took place in their house.

(Appellants' App. at 8-11) (emphasis in original).

DISCUSSION AND DECISION

Appellants' issues relate to the propriety of the trial court's grant of summary judgment to Husband. Therefore, we begin with the standard of review for summary judgment motions, both in the trial court and on appeal.

"The purpose of summary judgment is to terminate litigation about which there can be no material factual dispute and which can be resolved as a matter of law." Branham v. Celadon Trucking Serv., Inc., 744 N.E.2d 514, 521 (Ind.Ct.App.2001), trans. denied 753 N.E.2d 16 (Ind.2001). A trial court should grant summary judgment if the pleadings and designated evidence demonstrate "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Ind. Trial Rule 56(C). Any doubts about the existence of material issues of fact must be resolved in favor of the non-moving party. SLR Plumbing & Sewer, Inc. v. Turk, 757 N.E.2d 193, 198 (Ind.Ct.App.2001).

The party moving for summary judgment has the initial burden to set forth evidence demonstrating no factual issues exist. Branham, 744 N.E.2d at 521. Then, the burden shifts to the nonmoving party to produce evidence demonstrating an issue of fact exists. Id. The nonmoving party may not simply rest on the pleadings; rather, he or she must designate evidence to the trial court. Id.

We review the trial court's decision applying the same standard applied by the trial court. SLR Plumbing, 757 N.E.2d at 198. In addition, our review is limited to the evidence designated to the trial court. Id. We may affirm on any theory supported by that evidence. Branham, 744 N.E.2d at 521.

1. Federal Statute7

In response to two United States Supreme Court decisions in the late 1960's, Congress began drafting comprehensive legislation regarding the use of evidence obtained via...

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