Pulawski v. Pulawski, 80-497-A

• Decision Date: 15 July 1983
• Docket Number: No. 80-497-A,80-497-A
• Citation: 463 A.2d 151
• Parties: Walter J. PULAWSKI v. Patricia A. PULAWSKI. ppeal.
• Court: Rhode Island Supreme Court

Page 151

463 A.2d 151

Walter J. PULAWSKI v. Patricia A. PULAWSKI.

No. 80-497-Appeal.

Supreme Court of Rhode Island.

July 15, 1983.

William Y. Chaika, Cranston, Alfred Factor, Providence, for plaintiff.

Joseph E. Marran, Jr., Pawtucket, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment entered in the Family Court awarding a divorce to each of the parties on the ground of irreconcilable differences. The court determined the custody of the parties' minor children and awarded the wife alimony, support for the minor children, counsel fees, and a portion of the husband's property amounting to approximately 50 percent of his total assets, including retained earnings in a corporation of which he was the sole stockholder. In support of his appeal the husband raises four issues. In light of our determination relating to the first three issues, it will be unnecessary for us to reach the fourth. We reverse. The facts pertinent to this appeal are as follows.

Walter J. Pulawski (husband) and Patricia A. Pulawski (wife) were married December 29, 1965, and are the parents of two minor children. The parties had an uneventful marriage until approximately November 1978 when the husband began to suspect his wife of committing adultery with a man who had long been a friend, adviser, and attorney to both parties. Pursuant to these suspicions, the husband confronted the wife on a number of occasions and arranged to have a recording device placed upon the domestic telephone of the parties in order that he might record conversations of a romantic nature between his wife and her alleged lover. As a result of the husband's investigations and apparently relying in part upon the tape recordings, the husband brought action against his wife, seeking a divorce on the ground of gross misbehavior and wickedness repugnant to and in violation of the marriage covenant. The wife filed a cross-petition for divorce against her husband on the ground of irreconcilable differences. At the trial, the husband examined his wife as an adverse witness and attempted to examine her alleged lover in the same manner. Both refused to answer questions and asserted as ground therefore their privilege against self-incrimination as guaranteed by the Fifth Amendment to the Constitution of the United States made applicable to the states through the due-process clause of the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The husband then attempted to introduce recorded conversations between the wife and her alleged lover but was prevented from doing so by the trial justice on the ground that such evidence had been obtained in violation of 18 U.S.C.A. § 2511 (1970). This section was originally promulgated as part of the Omnibus Crime Control and Safe Streets Act of 1968, which makes it unlawful for a person whether acting under color of law or otherwise, to intercept any wire or oral communication without the consent of one of the parties to such conversation. Specifically, § 2511(2)(d) reads as follows:

"It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire or oral communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act * * *."

The husband argues that he should have been allowed to introduce the recorded telephone conversations because the sole testimony in the record regarding such conversations and their interception was given by the husband. Furthermore, he clearly and unequivocally asserted that the wife had consented to the recording of their telephone calls. Indeed, the record discloses that the trial justice in the course of a colloquy with counsel stated:

The Court: "Well, so far, what I have, is she's agreed to having the tapes, the telephone calls taped--"

Counsel: "That's only his statement."

The Court: "I know it's his statement, but that's all I have got. Until she denies it, I've got nothing else."

Although the wife did not take the stand to deny her husband's testimony and although there was no other testimony offered concerning consent, or lack thereof, the trial justice excluded the recordings from evidence and would not even permit an offer of proof to establish their relevance and materiality.

Consequently, although the trial justice did not reject the husband's testimony or give any reason for disregarding it, he nevertheless made a finding that the evidence was inadmissible, even though the only testimony before him indicated that the wife had given her consent to such interception. We are of the opinion that the trial justice erred in ignoring uncontradicted evidence without giving a specific reason for his rejection thereof. See Milliken v. Milliken, 120 R.I. 762, 390 A.2d 934 (1978); Beaupre v. Dynachem Corp., 113 R.I. 612, 324 A.2d 621 (1974); Peloso v. Peloso, Inc., 107 R.I. 365, 267 A.2d 717 (1970).

In light of the fact that the trial justice refused to allow an offer of proof in respect to relevancy, we shall assume, without deciding, that these conversations would have been relevant and probative in support of the husband's petition for divorce. Further, since the determination of the factual question of consent goes to the very heart of the trial justice's ruling on admissibility, we are of the opinion that he was clearly wrong in making a factual finding that was directly in contradiction of the only evidence presented on that issue by either party.

The second issue raised by the husband is the refusal on the part of the trial justice to allow the husband to use the technique of cross-examination in questioning the wife's alleged lover, the wife's mother, and two friends. An examination of the record in this case would indicate very clearly that the wife's alleged lover and her mother were undeniably in a posture that was hostile to the interests of the husband. General Laws 1956 (1969 Reenactment) § 9-17-14 provides inter alia that "[a]ny other person whose interest is adverse to the party calling him, may be examined as if under cross-examination."

This provision parallels the terms of Domestic Relations Rule 43(b), which provides for the calling of an adverse party and the interrogation of such party by leading questions: This rule, which has now been adopted by the Family Court, further provides that a party may interrogate any unwilling or hostile witness by leading questions. Regardless of whether one applies § 9-17-14 or Rule 43(b) as presently adopted by the Family Court, it seems apparent that to hold that the wife's alleged lover, who had refused to answer questions on the ground of self-incrimination concerning his relationship to the wife, was not hostile or adverse is to close one's eyes completely to reality. Although the hostility of the wife's mother was not so apparent, we believe that on balance the technique of cross-examination should have been allowed in respect to her as well. See Puccio v. Diamond Hill Ski Area, Inc., 120 R.I. 28, 385 A.2d 650 (1978). Regarding the two friends, the record does not disclose a sufficient basis for a determination of hostility or adversity in respect to them. Consequently, in regard to the alleged lover and the wife's mother, the trial justice's refusal to allow cross-examination was in error. We shall not disturb his ruling in respect to the two friends.

The third issue raised by the husband relates to the failure on the part of the trial justice to impose any sanction upon the wife because of her assertion of her Fifth Amendment privilege against self-incrimination. The husband argues that by seeking affirmative relief, including alimony and equitable distribution of her husband's assets, the wife placed her conduct in issue. Carter v. Carter, R.I., 413 A.2d 55 (1980). He asserts that the award of alimony, as well as the equitable distribution of property, is made contingent upon several factors, including "the conduct of the parties during the marriage * * *." General Laws 1956 (1969 Reenactment) §§ 15-5-16 and 15-5-16.1, as enacted by P.L. 1979, ch 279, § 2.

There is no question that a party to a civil action may claim the benefit of the privilege against self-incrimination. See Arndstein v. McCarthy, 254 U.S. 71, 41 S.Ct. 26, 65 L.Ed. 138 (1920). However, a witness who voluntarily takes the stand in a civil case has been held to waive the privilege against self-incrimination in respect to cross-examination that is relevant to the issues raised by such testimony. Brown v. United States, 356 U.S. 148, 78 S.Ct. 622, 2 L.Ed.2d 589 (1958).

In enunciating the principles related to the voluntary testimony by a witness in a civil case, Mr. Justice Frankfurter observed:

"Such a witness has the choice, after weighing the advantage of the privilege against self-incrimination against the advantage of putting forward his version of the facts and his reliability as a witness, not to testify at all. He cannot reasonably claim that the Fifth Amendment gives him not only this choice but, if he elects to testify, an immunity from cross-examination on the matters he has himself put in dispute. It would make of the Fifth Amendment not only a humane safeguard against judicially coerced self-disclosure but a positive invitation to mutilate the truth a party offers to tell." 356 U.S. at 155-56, 78 S.Ct. at 627, 2 L.Ed.2d at 597.

In the case at bar the wife took the stand during her case-in-chief only in order to subject herself to cross-examination concerning her entitlement to alimony and equitable distribution of the marital assets. The wife was allowed to introduce an affidavit setting forth her expenses. The trial justice limited cross-examination solely to a list of expenses and to the financial inferences that might be drawn therefrom....