Silas v. Silas

• Decision Date: 12 July 1996
• Citation: 680 So.2d 368
• Parties: Carla Seamon SILAS v. John David SILAS, Sr. 2950419.
• Court: Alabama Court of Civil Appeals

Page 368

680 So.2d 368

Carla Seamon SILAS v. John David SILAS, Sr.

2950419.

Court of Civil Appeals of Alabama.

July 12, 1996.

Timothy C. Halstrom, Montgomery, for Appellant.

Cynthia T. McDowell of McDowell, Faulk & McDowell, Prattville, for Appellee.

Andrew W. Tampling, Jr., Prattville, Guardian Ad Litem, for the minor child.

ROBERTSON, Presiding Judge.

Carla Seamon Silas and John David Silas, Sr., were married in September 1985 and one child, a son, was born of the marriage. The parties were divorced by a judgment of the Autauga County Circuit Court on November 2, 1989. The mother was awarded custody of the minor child, then 2 years old, and the father was awarded certain visitation rights. The father was ordered to pay $350 per month child support.

On September 9, 1994, the mother filed a petition to modify, requesting, among other things, that the father's child support obligation be increased. On September 21, 1994, the father answered and counterclaimed, seeking custody of the minor child and child support. On October 17, 1994, the father filed a motion requesting the appointment of a guardian ad litem to represent the minor child's interests and the appointment of an independent psychologist to evaluate the parties and the minor child. The trial court entered an order on October 19, 1994, appointing a licensed psychologist to evaluate the parties and the minor child and appointing a guardian ad litem to represent the minor child's interests. On October 20, 1994, the mother responded, objecting to the father's motion for the appointment of a guardian ad litem and a psychologist.

On December 9, 1994, the mother filed a motion seeking a protective order prohibiting the father or his attorneys from providing to anyone, including the guardian ad litem and the court-appointed psychologist, copies of audiotape recordings of telephone conversations between the minor child and the mother. On February 13, 1995, the trial court entered an order denying the mother's request for a protective order. On February 22, 1995, the mother petitioned this court for a writ of mandamus. This court denied the mother's petition, without an opinion, on March 21, 1995.

On June 23, 1995, the father filed a motion requesting pendente lite custody of the minor child. Following a hearing, at which the parties entered into a stipulated settlement of the pendente lite issues, the trial court entered an order on July 21, 1995, awarding the father pendente lite custody of the minor child and granting the mother certain visitation rights. On October 24, 1995, the mother filed a motion in limine requesting the trial court to exclude the audiotape recordings of telephone conversations between the father and her and between the minor child and her. The mother also requested that the guardian ad litem and the court-appointed psychologist be precluded from basing their opinions on the audiotape recordings and that the trial court exclude any opinions of the guardian ad litem as to custody and visitation.

The trial court denied the motion in limine in an ore tenus proceeding on October 27, 1995, and entered a judgment on December 14, 1995. The trial court found a change in circumstances that warranted a change in custody of the minor child. The trial court awarded the father custody of the minor child and granted the mother certain visitation. The trial court specifically found, based on the mother's current financial and legal condition, that it would be manifestly unjust and inequitable to order the mother to pay child support. Rule 32(A)(ii), Ala.R.Jud.Admin.

The mother appeals, raising two issues: (1) whether the trial court erred in holding that the audiotape recordings of telephone conversations between the minor child and the mother were admissible, and (2) whether the trial court erred in permitting the court-appointed psychologist and the guardian ad litem to rely on the taped conversations between the minor child and the mother as basis for their opinion testimony.

The mother argues that the audiotape recordings of telephone conversations between the minor child and her were made in violation of the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510 through 2521, because, she says, neither she nor the minor child consented to the recording of their conversations.

The Electronic Communications Privacy Act of 1986, part of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § 2510 et seq., prohibits the interception of, recording of, and introduction into evidence of telephone communications unless one party to the communications gives consent or a court order is obtained authorizing the interception and recording of the telephone conversations. 18 U.S.C. §§ 2511 and 2515. The Electronic Communications Privacy Act also contains an extension telephone exemption, which is set out in 18 U.S.C. § 2510, which provides in part:

"(5) 'electronic, mechanical, or other device' means any device or apparatus which can be used to intercept a wire or oral communication other than--

"(a) any telephone or telegraph instrument, equipment or facility, or any component thereof, (i) furnished to the subscriber or user by a communications common carrier in the ordinary course of business and being used by the subscriber or user in the ordinary course of its business...."

Although most of the federal courts addressing the issue have not addressed whether a parent may consent on behalf of a minor child, they have held that § 2510(5)(a)(i) exempts a parent's use of an extension telephone to listen in on a minor child's telephone conversations. Scheib v. Grant, 22 F.3d 149 (7th Cir.1994); Newcomb v. Ingle, 944 F.2d 1534 (10th Cir.1991); Janecka v. Franklin, 843 F.2d 110 (2d Cir.1988); Anonymous v. Anonymous, 558 F.2d 677 (2d Cir.1977); Thompson v. Dulaney, 838 F.Supp. 1535 (D.Utah 1993); see also Hearings on Anti-Crime Program Before Subcomm. No. 5 of the House Judiciary Comm., 90th Cong., 1st Sess. 901 (1967). Those courts have also held that the exemption of § 2510(5)(a)(i) applies to a custodial parent's use of an extension telephone to record a child's telephone conversation with the non-custodial parent, because the courts found that a parent's recording of a telephone conversation from an extension telephone is a distinction without a difference from the parent's listening to a telephone conversation on an extension telephone. Scheib, Newcomb, Janecka, and Anonymous, supra.

Our supreme court has held that federal decisional law construing a federal statute, in the absence of a contrary holding of the United States Supreme Court, is binding on the appellate courts of Alabama. Ex parte Gurganus, 603 So.2d 903 (Ala.1992); Dickey v. West Boylston Mfg. Co., 251 Ala. 19, 36 So.2d 106 (1948). The minor child was in the father's custody for visitation when the telephone conversations between the minor child and the mother were recorded; therefore, we conclude that the father's tapings of the telephone conversations were exempt from the provisions of the Electronic Communications Privacy Act, under federal case law. Scheib, Newcomb, Janecka, and Anonymous, supra.

The mother also argues that the tape recordings were made in violation of § 13A-11-31, Ala.Code 1975, which prohibits the use of any device to eavesdrop on a private conversation, and that the tape recordings are inadmissible. Section 13A-11-30(1), Ala.Code 1975, defines the term "eavesdrop" as "[t]o overhear, record, amplify or transmit any part of the private communication of others without the consent of at least one of the persons engaged in the communication, except as otherwise provided by law." As under the Electronic Communications Privacy Act, consent is a defense to a charge of violating § 13A-11-31. Commentary to § 13A-11-31. Consequently, we must determine whether the minor child had the capacity to consent to the tape recording of his telephone conversations with the mother or whether the father could consent, on behalf of the minor child, to the recording of the telephone conversations between the minor child and the mother.

Although this issue is one of first impression for the Alabama appellate courts, the issue was addressed by the United States District Court in Thompson, supra, under the "consent" exception to the Electronic Communications Privacy Act. 18 U.S.C. § 2511. In that case, Dulaney, the mother, during the pendency of divorce proceedings, recorded telephone conversations...