Platt v. Platt, 88-1983

• Decision Date: 10 May 1989
• Docket Number: No. 88-1983,88-1983
• Citation: 951 F.2d 159
• Parties: Stuart L. PLATT, Appellant, v. Angela R. PLATT, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 159

951 F.2d 159

Stuart L. PLATT, Appellant, v. Angela R. PLATT, Appellee.

No. 88-1983.

United States Court of Appeals, Eighth Circuit.

Submitted Oct. 31, 1988.

Decided May 10, 1989.

Donna Aronoff Smith, St. Louis, Mo., argued, for appellant.

Thomas Flynn, St. Louis, Mo., argued, for appellee.

Before HEANEY, Circuit Judge, ^* ROSS, Senior Circuit Judge, and BOWMAN, Circuit Judge.

ROSS, Senior Circuit Judge.

Stuart Platt appeals the district court's dismissal of his action brought under the federal wiretapping statutes, 18 U.S.C. §§ 2510-2520 (Title III), alleging that his wife, Angela Platt, illegally intercepted and/or used information gained from wiretapping his telephone conversations with his minor child. The district court relied upon Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977), held that Title III does not apply to purely domestic conflicts, and dismissed the complaint for failure to state a claim, 685 F.Supp. 208. We reverse and remand for further proceedings.

Stuart lived in Olivette, Missouri, while Angela lived with their then four-year-old daughter Theresa in Mexico, Missouri. The petition for dissolution of their marriage was pending. The Circuit Court of St. Louis County allowed Stuart and Theresa to maintain regular phone contact (three times per week). Stuart's complaint alleged that Angela "installed a tape recording device on [her] telephone in order to intercept, monitor, and record telephone calls" made by "Stuart to [their] minor child" to gain an advantage in their dissolution proceeding. The complaint further alleged that Stuart did not authorize Angela to do so, nor did he ever expressly or impliedly consent to the installation of the recording mechanism.

Angela's motion to dismiss stated that (1) she could not have violated 18 U.S.C. § 2511 because she, as natural mother and legal guardian of the minor child, stood in the place of the minor child and had consented to the recording, (2) her child was not a "person" within the meaning of 18 U.S.C. § 2510(6) for purposes of § 2511, and (3) the action was barred by interspousal immunity.

Angela's memorandum in support of her motion to dismiss stated that Stuart's allegations in essence, constituted only Angela's recording of her own calls. Stuart responded that Anonymous v. Anonymous, supra, 558 F.2d at 677, reflects the minority view that § 2511 is inapplicable as between spouses. Further, he noted that because he and Angela were joint legal custodians of the child, Angela did not have the legal capacity to "commit the child to such a course of action." He stressed that the focus is factual consent, not legal capacity to consent, citing United States v. King, 536 F.Supp. 253 (C.D.Cal.1982), and that since Angela "did not participate in the communication between the father and the daughter, she is not a party who can give consent, and it is equally obvious that the daughter did not factually consent."

In ruling on the motion to dismiss, the district court framed the issue as "the extent to which Title III applies to interspousal wiretaps used in preparation for divorce litigation where the alleged violator attaches a recording device to his or her own telephone." The district court could not "conclude that federal law was intended to apply to a 'purely domestic conflict' involving the interception of a family member's phone conversations." It granted the motion to dismiss, finding the holding in Anonymous v. Anonymous dispositive of the issue without expressly relying on the extension phone exemption of 18 U.S.C. § 2510(5)(a)(i) (listening in on a conversation from an extension phone is not actionable). The district court declined to address the parties' arguments concerning the application of Title III's consent exemption, 18 U.S.C. § 2511(2)(d), to the case.

In light of Kempf v. Kempf, 868 F.2d 970 (8th Cir.1989) (Title III applies to domestic situation of interspousal wiretapping), recently decided by this court, it is apparent that the district court relied on a nonexistent interspousal immunity. Further, we do not agree, based on the record before us, with the district court's ruling that Anonymous v. Anonymous is dispositive of the case.

In Anonymous, the court held that the facts alleged did not rise to the level of criminal conduct intended to be covered by the wiretap statutes. The defendant ex-husband had exclusive custody of the eight-year-old child, and had sometimes listened in on the child's conversations with the plaintiff ex-wife through an intercom device that was part of the taping equipment. The court found the fact that the defendant "taped the conversations which he permissibly overheard" to be a "distinction without a difference" from simply listening in on the conversations. Anonymous, supra, 558 F.2d at 679. The Anonymous court did not specifically utilize the extension phone exemption, but rather cited the civil damage case of Simpson v. Simpson, 490 F.2d 803 (5th Cir.) (Title III does not apply to purely domestic situations), cert. denied, 419 U.S. 897, 95 S.Ct. 176, 42 L.Ed.2d 141 (1974), which was specifically rejected by this court in Kempf v. Kempf. The court did not address the issue of consent.

Here, the designated record does not reveal such facts as whether all incoming and outgoing calls were recorded, whether the machine recorded automatically, or whether a button on the machine needed to be turned...