Marriage of Lopp, In re

• Citation: 268 Ind. 690,378 N.E.2d 414
• Decision Date: 20 July 1978
• Docket Number: No. 778S145,778S145
• Parties: In re the MARRIAGE OF Judith Gayle LOPP, Respondent-Appellant, and James D. Lopp, Jr., Petitioner-Appellee.
• Court: Indiana Supreme Court

Page 414

378 N.E.2d 414

268 Ind. 690

In re the MARRIAGE OF Judith Gayle LOPP, Respondent-Appellant and James D. Lopp, Jr., Petitioner-Appellee.

No. 778S145.

Supreme Court of Indiana.

July 20, 1978.

Rehearing Denied Sept. 18, 1978.

Grove, Miller & Lantz, Evansville, for respondent-appellant

Rice & VanStone, Evansville, for petitioner-appellee.

ON PETITION TO TRANSFER

PIVARNIK, Justice.

This case comes to us on a transfer petition from the Court of Appeals, First District. The Vanderburgh Superior Court entered a judgment, on December 22, 1975, dissolving the marriage of the parties, husband James Lopp Jr. and wife Judith Lopp. At the same time, the trial court ordered a division of the parties' property and awarded the husband permanent custody of their minor child, James Lopp III. On appeal, the judgment of the trial court was reversed. In re Marriage of Lopp, (1977) Ind.App., 370 N.E.2d 977. Husband James Lopp Jr. petitions this court to transfer this case and to set aside the judgment of the Court of Appeals.

The principal question for our review is whether the trial court's admission into evidence of tape recordings of wiretapped telephone conversations mandates reversal of this case. An examination of this question requires a close look at the sequence and context of events, surrounding the admission of these tapes, at the trial court.

The husband, James Lopp Jr., an attorney, and the wife, Judith Lopp, were married on January 9, 1971. They had one child, James Lopp III. Also, Mrs. Lopp had custody of her two children from a previous marriage.

Mr. Lopp subsequently became suspicious of his wife's activities. On September 20, 1975, Mr. Lopp attached a self-activating tape recorder to his home phone, without the knowledge of his wife. This device recorded all telephone conversations, and the tape recordings acquired in this manner apparently confirmed Mr. Lopp's suspicions that his wife was seeing another man.

On September 22, 1975, the couple became involved in a domestic crisis and separated. On this date husband James Lopp confronted his wife Judith with tape recordings of telephone conversations allegedly between her and various other parties. Mr. Lopp took physical custody of their son, James Lopp III, on this date, and moved out of the marital home.

On September 23, 1975, Judith Lopp went to her husband's law office. Her father-in-law, James Lopp Sr., also an attorney, informed her that if she did not consent to give her husband temporary custody of their son James until this conflict was resolved, he would phone her former husband, inform him of the tapes and their contents, and she could possibly lose custody of all three of her children. Judith then signed an agreed provisional order which stated, in relevant part:

"Comes now the Husband in the above matter and files his petition for custody of parties' minor child, and comes now the wife and the parties agree as follows:

1. That the husband shall have the care, custody and control of the parties minor child, James Daniel Lopp, III, provided, however, the wife shall have temporary custody of said child at reasonable times.

And the Court now approves the agreement of the parties and the same is now so ORDERED.

I have read the above order and being advised of my rights to an attorney, freely and voluntarily consent and approve said order.

/S/ Judy Lopp

Wife"

On this same date, husband James Lopp Jr. filed both a Petition for Dissolution of Marriage, and a Motion for Temporary Custody of Parties' Minor Child. This motion for temporary custody, as quoted above and signed by Judith Lopp, was approved and ordered by the trial court.

On September 29, 1975, after Judith Lopp talked to an attorney, she filed a Petition for Relief which asked for temporary custody of the parties' child, adequate support, possession of the parties' home, and an order restraining Mr. Lopp from interfering with her quiet enjoyment of the home. This petition also alleged that Mrs. Lopp had been coerced into agreeing that her husband should have custody of their child.

On September 30, 1975, after a meeting between wife, husband, his father, and her attorney, the trial court approved the substance of the September 23 agreement between the couple, along with other provisions. The pertinent part of this court-approved agreement, as ordered and certified into the record, was as follows:

"Comes now the husband by his attorney, Glenn A. Grampp, and comes now the wife by her attorney, David Kelley, and the wife's petition coming on for hearing, the parties agree as follows:

1. That the husband shall have the care, custody and control of the parties' minor child, James Daniel Lopp, III, provided however, the wife shall have the privilege of seeing and visiting the parties' minor child, one day a week from 9:00 A.M. to 5:00 P.M.

This agreement is entered into freely and voluntarily without coercion or duress and with the wife being advised by her attorney, and having full knowledge of all the facts.

And the court now approves the agreement of the parties and the same is now so ordered."

On October 3, 1975, Judith Lopp filed a Petition for Rehearing with the trial court, in which she asked the court for a new hearing on the issue of her son's custody. Alleging that the two previous court-approved custody agreements were not voluntarily agreed to by her, Mrs. Lopp's petition stated that:

"(B)oth of her agreements herein were wrung from her by threats and coercion in that she was threatened with publication of several of her private phone calls which were recorded without her knowledge by her husband, she was threatened with total loss of her said child, her former husband, James Forman, was subpoened to the hearing and she was threatened with the influence of her husband on transferring custody of her two daughters to said James Forman. Affiant further says that she has been subjected to the Lopp infallibility in the field of law and intimidated by the assertion of her husband and his father of their influence over the courts of this area. Affiant further says that she was advised by her lawyer, David O. Kelley, not to agree but at the conference she agreed to the custody in her husband which was held in her husband's office where she feared for her children and their future as a family with her because of the coercion, intimidation and threats aforesaid."

Subsequent to this petition, the regular trial court judge relinquished jurisdiction and a special judge was named. Further motions and petitions were filed by the parties, including a motion by Mr. Lopp to dismiss his wife's Petition for Rehearing. The trial court took the entire matter under advisement.

On November 25, 1975, the trial court considered Mrs. Lopp's Petition for Rehearing, and overruled her husband's motion to dismiss it. A hearing was then held, specifically on the issue of the alleged fraud and coercion in the procurement of the provisional custody orders. During cross-examination of Mrs. Lopp, her husband's attorney asked that the tapes be admitted. The wife's attorney, Mr. Grove, objected on the basis of 18 U.S.C. § 2515 (1970). The trial judge stated that he had opposing briefs by the parties, including conflicting federal circuit opinions on the question of the admissibility of wiretaps in marital proceedings, and stated, "I'm prepared to overrule the objections to the tapes. If I'm wrong, I'll be reversed. If I rule otherwise and I'm wrong, I'd be reversed, so my best judgment is that my chances are better." There were further objections by the wife's attorney, relating to the disclosure of the names of third parties that might be involved by admitting the tapes. The court then stated, "Now, I'm just down here to try this case. Everyone in this courtroom knows who you're talking about but myself, and I'm the one who has to decide it." Husband's attorney then cross-examined Mrs. Lopp about the contents of the tape. Her attorney made foundation objections, saying that he had not reviewed the tapes, and questioned their accuracy. The following colloquy then took place between the court and wife's attorney:

THE COURT: Well, now, let me see where I am on this. She's testified that one of the reasons that she signed this was that she was afraid that the tapes would be made available to a former husband or something. Is that right?

MR. GROVE: That's correct. It was her testimony, yes.

THE COURT: And they're questioning whether or not playing those tapes was sufficient to intimidate her to get her to do it. Now, how am I going to know unless I hear the tapes? If that's going to be part of your evidence, then do I take your word for it, or am I supposed to hear the tapes? What's your position on that?

MR. GROVE: No, may I say to the Court that we have no objection if the Court does hear the tapes under any circumstances, under the appropriate rules, as a matter of fact, either by way of incamera proceedings or anything else. I'm not sure what the state of the law is. Not that I'm questioning the Court's ruling. We don't have any objection if the Court listens to the tapes, either in in camera proceedings or anything else, to help you decide. That is not the basis. I object to the format by which they are attempting to cross-examine her as to the subject matter. And because of the many questions in my mind, if the Court wishes, out of the presence of both attorneys and parties, to listen to the tapes, I have no objection whatsoever. Except, I cannot verify . . . I can't say and I don't know that my client can say that they have not been tampered with in some way, there's no evidence.

THE COURT: Of course, I certainly wouldn't listen to them without the presence of both attorneys on either side. That's part of it. I personally would rather not listen to them, if I had a preference on it.

MR. GROVE: . . . (W)e have no objection as long as there are appropriate orders to protect the parties.

The...