Heyman v. Heyman

• Decision Date: 29 September 1982
• Docket Number: No. 81 C 6873.,81 C 6873.
• Citation: 548 F. Supp. 1041
• Court: U.S. District Court — Northern District of Illinois
• Parties: Kay D. HEYMAN, Plaintiff, v. Milton G. HEYMAN, Defendant.

548 F. Supp. 1041

Kay D. HEYMAN, Plaintiff, v. Milton G. HEYMAN, Defendant.

No. 81 C 6873.

United States District Court, N. D. Illinois, E. D.

September 29, 1982.

Matthew J. Piers, Chicago, Ill., for plaintiff.

Howard A. London, Beermann, Swerdlove, Woloshin, Barezky & Berkson, Chicago, Ill., for defendant.

Memorandum

LEIGHTON, District Judge.

This suit was filed after the plaintiff discovered that defendant, from whom she was estranged but living separately from him in the same apartment, had attached a wire and jack to her bedroom telephone and wiretapped her private conversations with others. In her three-count complaint, she alleges that this conduct is actionable under the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2511, 2520; that it violated an Illinois criminal statute, Ill.Rev.Stat.1979, ch. 38, § 14-2, which prohibits electronic eavesdropping; and that as a consequence, she has a cause of action against defendant as provided by Ill.Rev.Stat.1979, ch. 38, § 14-6.

Defendant has moved to dismiss alleging that at the time in question he and plaintiff were man and wife under Illinois law; that the wiretap prohibitions of the Omnibus Crime Control and Safe Streets Act of 1968 were not intended by Congress to apply to interspousal interceptions; and that Illinois law in force at the time in question expressly prohibited one spouse from suing another for tort committed during coverture. Therefore, defendant presents two issues. First, whether at the time in question he and the plaintiff were man and wife. Second, whether in enacting 18 U.S.C. §§ 2511, 2520, Congress intended that the proscriptions against interception and disclosure of wire or oral communications were to apply to interspousal wiretaps. The material allegations of plaintiff's complaint, which the court accepts as true, disclose the following facts.

I

Kay D. Heyman and Milton G. Heyman, plaintiff and defendant respectively in this case, were married in 1942. This relation, however, deteriorated with time into one of hostility; and in the last years of their marriage, they shared one apartment. They had no social or sexual contact with each other. In 1978, plaintiff filed suit for divorce in the Circuit Court of Cook County, and her petition was opposed by defendant only with respect to the disposition of their marital property. On December 11, 1979, the suit came for hearing; and at its conclusion, the judge orally announced that his finding was in favor of the plaintiff, and that "the court will award judgment dissolving the marriage." He continued the proceedings for trial concerning disposition of the contested property. The decree for divorce was not entered until August 5, 1980. The parties, however, continued to share the same apartment, each living alone.

On December 17, 1979, six days after the divorce hearing, plaintiff at her expense arranged for a private telephone to be installed in her bedroom, for her private use. Soon thereafter, but some six months before the divorce decree was entered, defendant attached a wire and jack to the phone, using the wall behind a vanity cabinet in his bathroom, and listened to plaintiff's telephone conversations. The wiretapping equipment was later located by Illinois Bell Telephone personnel and removed on March 13, 1980. Plaintiff then filed this suit. In Count I of her complaint, she alleges that his conduct is actionable under Section 2520 of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2520, which provides in part that:

Any person whose wire or oral communication is intercepted, disclosed, or used in violation of this chapter shall (1) have a civil cause of action against any person who intercepts, discloses, or uses, or procures any other person to intercept, disclose, or use such communications.

In Count II plaintiff claims that defendant's actions violated Ill.Rev.Stat.1979, ch. 38, § 14-2 which defines the elements of criminal electronics eavesdropping and provides in part that:

A person commits eavesdropping when he:

(a) uses an eavesdropping device to hear or record all or any part of any conversation unless he does so (1) with the consent of all of the parties to such conversation or (2) with the consent of any one party to such conversation in accordance with Article 108A of the Code of Criminal Procedure of 1963, approved August 14, 1963, as amended;

* * * * * *

Plaintiff claims that she is entitled to recover from defendant because Ill.Rev.Stat. 1979, ch. 38, § 14-6 provides for civil remedies to parties who are injured by acts which constitute the crime of electronic eavesdropping under Illinois law. Finally, in Count III plaintiff alleges that defendant's conduct supports a claim for relief in her favor for a tortious invasion of her common law right to privacy.

II

Defendant's principal argument in support of his motion to dismiss is that at the time he wiretapped plaintiff's private telephone she was his wife. He points to the fact that they were married in 1942; and although she had filed a suit for divorce, had obtained a hearing and an oral ruling by a judge that a decree dissolving the marriage would be awarded, no dissolution of the marriage in fact took place until August 5, 1980. The wiretapping about which plaintiff complains occurred before the decree of divorce was entered. Defendant argues that when Congress enacted the Omnibus Crime Control and Safe Streets Act of 1968 and prohibited interception of wire or oral communication, it did not intend such proscriptions to apply to interspousal wiretaps, matters which in their nature are purely domestic conflicts ordinarily handled by state courts. Therefore, defendant insists that as to plaintiff's claim under Count I, she is not entitled to relief against him; as to the pendent claims alleged in Counts I, II, and III, Illinois law in force at the time, Ill.Rev.Stat.1979, ch. 40, § 1001, expressly provides that "neither husband nor wife may sue the other for a tort to the person committed during coverture."

III

A

Traditionally, divorce proceedings are deemed equitable in nature. Thus it has long been a principle of Illinois divorce procedure that oral announcements or remarks of a judge are not binding unless they are embodied in a written order or decree, approved by him and entered of record with the clerk of the court. Stewart v. Stewart, 35 Ill.App.3d 236, 341 N.E.2d 136, 139 (1976); see I. L. P. Chancer, §§ 443, 447. A divorce decree is not final until actually entered, it being recognized that a judge is free to change his mind as to his intended disposition of the case. In Re Marriage of Ayers, 82 Ill.App.3d 164, 37 Ill.Dec. 511, 513, 402 N.E.2d 401, 403 (1980). For these reasons, Illinois law does not permit the plaintiff to rely on the oral statements of a divorce judge, made prior to the alleged wiretapping but before the decree was actually entered, that he intended to grant her dissolution of her marriage to defendant. Where a valid marriage is shown, a presumption exists that such marriage continues. Therefore, this court is compelled to agree that at the time her private telephone was wiretapped by defendant, plaintiff was his wife. Richmond v. Richmond, 326 Ill.App. 234, 61 N.E.2d 573 (1945).

B

From this fact, defendant argues that granting plaintiff a federal remedy under Section 2520 of the Omnibus Crime Control and Safe Streets Act of 1968 will interfere with state regulation of marital relations and deprive him of the interspousal immunity which he enjoys under the laws of Illinois. He cites to this court Simpson v. Simpson, 490 F.2d 803 (5th Cir. 1974), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), and Anonymous v. Anonymous, 558 F.2d 677 (2d Cir. 1977), but relying more strongly on Simpson v. Simpson.

Plaintiff opposes defendant's motion, arguing that she states a claim for relief in Count I of her complaint without regard to the fact that at the time of the wiretapping she was defendant's wife. Congress, she maintains, intended to enact a statute that prohibited all wiretapping activities except those it specifically provided for. She relies primarily on the language of 18 U.S.C. §§ 2511(2) and (3) which does not include interspousal wiretaps among the specific exceptions. In support of her position, plaintiff calls this court's attention to a case from a court of appeals and one from a district court: United States v. Jones, 542 F.2d 661 (6th Cir. 1976) and Kratz v. Kratz, 477 F.Supp. 463 (E.D.Pa.1979). Additionally, she points to United States v. Giordano, 416 U.S. 505, 514, 94 S.Ct. 1820, 1826, 40 L.Ed.2d 341 (1974) in which the Supreme Court held that when Congress included wiretapping prohibitions in the Omnibus Crime Control and Safe Streets Act of 1968, its purpose was to prohibit all interceptions of wire communications, except those specifically permitted. And finally, plaintiff distinguishes Simpson v. Simpson and Anonymous v. Anonymous. As to the former, she argues it has been widely criticized as erroneous because it represents an unwarranted inquiry into congressional intent; as to the latter, she insists the facts of the case were viewed as analogous to the phone extension exception provided for in the Act whereas in this case, no such analogy is argued or is applicable.

These arguments and contentions are not new. They have evolved two distinct lines of cases interpreting the federal wiretapping statute either as including an implied exception for interspousal wiretapping or prohibiting all wiretapping except those specifically provided for. After considering both lines of cases, this court is constrained to follow those which interpret the Act as prohibiting interspousal wiretapping; it disagrees with defendant's contention that because at the time he intercepted plaintiff's telephone conversations she was his wife her claim in Count I must be dismissed. In this court's judgment, Simpson v....