Pollock v. Pollock

• Decision Date: 16 October 1998
• Docket Number: No. 97-5803,97-5803
• Citation: 154 F.3d 601
• Parties: Samuel B. POLLOCK Jr. and Laura Pollock, Plaintiffs-Appellants, v. Sandra T. POLLOCK, Oliver H. Barber, and Luann C. Glidewell, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 601

154 F.3d 601

Samuel B. POLLOCK Jr. and Laura Pollock, Plaintiffs-Appellants, v. Sandra T. POLLOCK, Oliver H. Barber, and Luann C. Glidewell Defendants-Appellees.

No. 97-5803.

United States Court of Appeals Sixth Circuit.

Argued April 24, 1998.

Decided Sept. 1, 1998.

Rehearing and Suggestion for Rehearing En Banc Denied Oct. 16, 1998.

Samuel Manly (argued and briefed), Louisville, KY, for Plaintiffs-Appellants.

Allen K. Gailor (argued and briefed), Louisville, KY, for Defendants-Appellees.

Before: BATCHELDER and COLE, Circuit Judges; McCALLA, District Judge. ^*

OPINION

McCALLA, District Judge.

Plaintiffs Samuel and Laura Pollock appeal the judgment of the district court granting Defendants' motion for summary judgment pursuant to Fed.R.Civ.P. 56. ¹ Plaintiffs brought an action against Defendants, alleging that Defendants violated the federal wiretapping statute, Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2521 ("Title III"), when Defendant Sandra Pollock tape-recorded conversations between her ex-husband, Plaintiff Samuel Pollock, and their minor daughter Courtney, and between Plaintiff Samuel Pollock's current wife, Plaintiff Laura Pollock, and Courtney. On appeal, we must determine: (1) whether the statutory consent exception contained in 18 U.S.C. § 2511(2)(d) of the federal wiretapping statute permits a parent to "vicariously consent" to recording a telephone conversation on behalf of a minor child in that parent's custody, without the actual consent of the child; and (2) if "vicarious consent" does qualify for the consent exception, whether questions of material fact precluding summary judgment exist as to whether Defendant Sandra Pollock's recording of her minor daughter's phone conversations with the child's father and step-mother was motivated by concern for the child's best interest. The district court concluded that "vicarious consent" to recording a telephone conversation, by a parent on behalf of a minor child in that parent's custody, qualifies for the statutory consent exception, and found that no questions of material fact existed as to Defendant Sandra Pollock's motivation in recording the conversations. Accordingly, the district court granted summary judgment for Defendants. For the reasons set forth below, we AFFIRM IN PART and REVERSE IN PART the judgment of the district court.

I.

Samuel Pollock ("Samuel") and his current wife, Laura Pollock ("Laura"), are Plaintiffs-Appellants in this matter. Samuel's former wife, Sandra Pollock ("Sandra"), and her attorneys, Oliver Barber ("Barber") and Luann Glidewell ("Glidewell"), are Defendants-Appellees. Samuel and Sandra were married in 1977, and had three children: Courtney Pollock, born April 24, 1981; Robert Pollock, born May 24, 1984; and Ian Pollock, born July 8, 1987. Samuel and Sandra separated in 1992, after Sandra discovered that Samuel had been having an extramarital affair. Joint Appendix ("J.A.") at 127. Their divorce became final in 1993, and the final divorce decree granted Sandra custody of all three children.

After the divorce, Samuel married Laura. In 1995, during the pendency of an appeal from the Jefferson County Circuit Court's property and support decrees, Sandra taped certain telephone conversations between Courtney and Samuel, and between Courtney and Laura. It is undisputed that Courtney, Samuel, and Laura did not consent to the recording of these conversations. Rather, Sandra argues that she "vicariously consented" to the recording on behalf of Courtney, a minor child in her custody, because she was concerned that Samuel was emotionally abusing Courtney.

A.

Careful consideration of the complete record in this matter is essential to the determination of the issues before us. As we conduct our analysis, it is important to be cognizant of the fact that the tape recordings by Sandra Pollock that form the basis of this lawsuit occurred in the context of a bitter and protracted child custody dispute. Accordingly, we begin with a summary of the events leading up to, and relating to, the tape-recording of the conversations by Sandra Pollock.

In May of 1994, Sandra learned that a telephone conversation between herself and her daughter Courtney had been tape-recorded. ² Sandra contends that Courtney told her that Samuel and Laura had tape-recorded the telephone call, but that Courtney would not give any further details. J.A. at 102. Laura and Courtney contend that Courtney told Sandra that Courtney had recorded a conversation with her mother from her father's home, with Samuel and Laura's knowledge and consent. J.A. at 157, 160. Laura concedes that on April 10, 1994, "Courtney tape-recorded a telephone conversation with Sandra with my knowledge and consent and with the knowledge and consent of my husband, Sam." ³ J.A. at 157.

Sandra contends that Samuel was very upset about losing custody of the children, especially Courtney. ⁴ J.A. at 101. According to Sandra's affidavit, during the divorce proceedings, and even after Jefferson County Circuit Court Judge Geoffrey P. Morris confirmed Sandra's custody of the children in April of 1994, ⁵ she "believed that Courtney was being subject to emotional and psychological pressure by Samuel and Samuel's wife, Laura, whereby Samuel was trying to get Courtney to do whatever she could to convince [Sandra] to let Courtney primarily live with Samuel." J.A. at 102. During this process, Sandra contends that she "noticed a gradual change in Courtney which included what [Sandra] felt was a[sic] excessive or compulsive desire to be with her father and corresponding deteriorating relationship with [Sandra]." Id. According to Sandra, she "could not determine merely from talking with or observing Courtney how far this desire of Courtney extended but [Sandra] believed, at the minimum, the psychological and emotional pressure which she believed was being put upon Courtney by Samuel was detrimental to Courtney and perhaps rose to the state of abuse or emotional harm or injury." Id.

According to Sandra, it was this concern for Courtney, who was fourteen years old at the time, that caused her to place a tape recorder on her extension telephone in her bedroom to monitor the telephone activity at her house. J.A. at 102-03. Sandra maintains that her only motivation in doing this was "concern for her child's well being." Id. The monitoring began in May of 1995, and lasted only a few weeks. During the course of the monitoring, Sandra heard a conversation between Courtney and Laura "which greatly alarmed and frightened" her and "gave [her] immediate concern for the safety and well being of 3 other individuals and confirmed to [her] the abuse and emotional injury and harm she suspected Courtney was being subjected to." J.A. at 103. The substance of that conversation, according to Laura, ⁶ was the following:

In late May of 1995, Courtney called me up one night when Sam was not at home, and was upset and complaining of Judge Morris's decision to require her to live with Sandra. Courtney began, as is not unusual for a teenager to do, to let off steam, even to the point of remarking--in obvious jest and with no semblance of seriousness--that she would like to kill "the two of them," referring to Oliver Barber and Luann Glidewell [Sandra's attorneys]. In equal jest, I joined in her sentiments, adding Judge Morris to the "hit list."

J.A. at 157 (emphasis in original). According to Laura, neither she, nor Courtney, took this conversation seriously, "as is obvious to anyone who would listen to the tape recording." ⁷ Id.

Because Sandra was disturbed by this conversation, she reported it to her attorney, Oliver Barber. J.A. at 103. After learning of the conversation's contents, Sandra alleges that Barber felt compelled by Ky.Rev.Stat. Ann. § 620.030, ⁸ to report the conversation to the Crimes Against Children Unit ("CACU"), a joint task force operated by the Louisville Division of Police and Jefferson County Police Department. Id. Barber had Sandra's permission to report the conversation. Id. Sandra ceased monitoring after she reported this conversation to Barber. Id. Subsequent to this, Courtney discovered the rest of the tapes in her mother's bathroom cabinet and gave them to Samuel and Laura.

The CACU then disclosed the contents of the tape containing the above conversation to Judge Morris, who had presided over Samuel and Sandra's divorce and subsequent custody disputes. A transcript of the conversation was made a part of the official record in the case, and Judge Morris recused himself.

According to Samuel and Laura, Sandra was not motivated by concern for Courtney when she recorded the phone conversations. Instead, they contend that Sandra was angry that Courtney had taped a conversation between herself and Sandra with Samuel and Laura's consent, and "wanted to return the favor by taping Courtney's conversations with Sam and [Laura]." J.A. at 155-56. Laura further contends that immediately before the recording began, Sandra discovered Courtney's diary, in which Courtney had recorded that she was being represented by counsel (hired by her father Samuel), Rebecca Ward, incident to the then on-going dispute as to Courtney's custody. J.A. at 156. Before discovering the diary, Sandra was unaware that Courtney had her own attorney. Id. Rather than being motivated by concern for Courtney's welfare, Laura contends that "Sandra's predominant motive in eavesdropping on the children's calls was to overhear Courtney's confidential, attorney-client conversations with her lawyer." Id.

In addition, Courtney's declaration states: "I believe my mother started recording calls when she discovered my diary entries which said that I was being represented by my own attorney, Becky Ward. At about the same time, someone had reported my mother to the authorities for possible abuse and neglect of me and my brothers." J.A. at 159-60. As to the state of her relationship...