Wright v. Stanley

• Decision Date: 19 June 1997
• Docket Number: No. 95-CA-01119-SCT,95-CA-01119-SCT
• Citation: 700 So.2d 274
• Parties: J. Stephen WRIGHT v. Carol P. STANLEY.
• Court: Mississippi Supreme Court

Page 274

700 So.2d 274

J. Stephen WRIGHT v. Carol P. STANLEY.

No. 95-CA-01119-SCT

Supreme Court of Mississippi.

June 19, 1997.

Cecil M. Heidelberg, James A. Becker, Jr., Watkins & Eager, Jackson, for Appellant.

S. Dennis Joiner, Jackson, for Appellee.

Before SULLIVAN, P.J., and PITTMAN and BANKS, JJ.

PITTMAN, Justice, for the Court:

J. Stephen Wright filed a petition to modify the divorce decree between him and his former wife Carol P. Stanley. Steve sought custody of his three sons Daniel, Michael, and Nathan. Carol filed a cross-petition seeking various modifications of the divorce decree primarily related to visitation and child support. She also sought attorney's fees and an order holding Steve in contempt for allegedly interfering with the childrens' relationship with her. During the trial, Steve abandoned his claim for custody for Daniel and Nathan, but retained his claim for Michael. The Chancellor entered a written opinion and order denying Steve's Petition for Modification of Judgment. He also ordered Steve to increase child support, pay Carol's attorney's fees, and he restricted Steve's visitation rights. From that decision, Steve appeals to this Court and assigns as error the following:

I. THE CHANCELLOR COMMITTED REVERSIBLE ERROR BY ADMITTING INTO EVIDENCE TAPE-RECORDED CONVERSATIONS BETWEEN STEVE WRIGHT AND HIS CHILDREN WHICH WERE INTERCEPTED BY CAROL STANLEY WITHOUT THE CONSENT OF STEVE WRIGHT OR HIS CHILDREN.

II. THE CHANCELLOR ERRED BY NOT COMPELLING CAROL STANLEY TO PRODUCE ALL TAPE-RECORDED CON-VERSATIONS SHE INTERCEPTED BETWEEN STEVE WRIGHT AND HIS CHILDREN.

III. THE CHANCELLOR'S DECISION TO DENY STEVE WRIGHT'S PETITION FOR MODIFICATION OF CUSTODY WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

IV. THE CHANCELLOR'S ORDER AWARDING ATTORNEY'S FEES AND INCREASED CHILD SUPPORT TO CAROL STANLEY WAS ERRONEOUS.

STATEMENT OF FACTS

On August 19, 1991, the Chancery Court of Madison County entered a final judgment of divorce between Carol and Steve Wright awarding custody of their three children to Carol. After the divorce, both Steve and Carol remarried. Steve and Jane Ann Wright live in their home with their two children. Carol and Bill Stanley live in their home with Daniel, Michael, and Nathan, the sons of Carol and Steve.

Steve filed his Petition for Modification of Judgment on January 19, 1995, seeking as his sole relief primary custody of all three children and a corollary ruling that he would be relieved of child support obligations. Steve's basis for filing the Petition was that Bill Stanley's marriage to Carol constituted a change in material circumstances warranting a change in child custody. Steve specifically alleged that the children were being emotionally abused by being called foul and insensitive names. He further alleged that Bill Stanley is a hot-tempered individual given to fits of rage, who cursed the children and was undermining their self image.

After Steve filed his petition, he engaged Dr. Wood Hiatt, a local psychiatrist specializing in working with children and families, to interview him and his children and then to render an opinion as to whether their best interests would be served by a change in custody. Dr. Hiatt stated in his opinion that only Michael's best interest would be served by the custody change. Thereafter, Steve limited his custody request to Michael.

Dr. Hiatt's opinion was based in part on the fact that Michael had expressed a consistent desire to live with Steve and Jane Ann, his stepmother. He had also expressed that he did not want to live with Bill Stanley. Dr. Hiatt also found that Michael was thriving everywhere except in his mother's home. He was a straight A student, a good athlete, and involved in many activities. He opined that the source of Michael's behavioral problems in the home was a result of the "fatal" relationship between Michael and Bill. Dr. Hiatt's final basis for his opinion was that he perceived Carol and Bill as blaming all of Michael's problems on Steve's interference, failing to take any responsibility themselves.

In response to Steve's petition, Carol filed a counterclaim. In it she sought: (1) to have the amount of child support fixed in the divorce judgment increased; (2) to have Steve's times and dates for visitation with his children specifically delineated; (3) to place time limitations on Steve's telephone conversations with the children; (4) to have Steve remain in his automobile when picking up and delivering the children for visitation; (5) to limit Steve's presence at her home during pick up and delivery of the children to not more than five minutes; (6) to eliminate from the divorce judgment the requirement that Carol give Steve notification prior to incurring necessary medical expenses for the children; (7) to hold Steve in civil contempt of court for attempting to undermine Carol's relationship with the children and her husband; and (8) a reasonable attorney's fee for the service of her attorney.

The case was tried on August 22 and 23, 1995. Most of the testimony related to whether Michael's best interest would be served by a change in custody, and whether Bill's presence in the home was having an adverse effect on Michael warranting such change. Part of Carol's evidence at trial consisted of two tape-recorded conversations between Steve and his children, which is the basis of this appeal. The Chancellor entered his written opinion and order on September 3, 1995, denying Steve's Petition for Modification of Judgment and granting the following relief to Carol: (1) Child support was increased from $400.00 per child per month to $440.00 per child per month. (2) Paragraph 23(x) of the divorce decree allowing undefined visitation rights was eliminated. The Chancellor limited visitation to specific times set out in the decree unless Carol from time to time agrees to grant additional privileges. (3) Telephone conversations were limited to two calls per day per child prior to 9:00 p.m. (4) Steve was restrained from entering Carol's yard or home. (5) Carol may now incur reasonable medical, dental, or optical expenses for each child up to $100.00 per child per month without notifying Steve in advance. (6) Carol was awarded attorney's fees in the amount of $7,800.00.

DISCUSSION OF LAW

I.

The first assignment of error raised on this appeal by Steve is that the Chancellor committed reversible error by admitting into evidence tape-recorded conversations between Steve and his children which were intercepted by Carol without consent. Steve challenges the admissibility of these tapes under both federal and state law. He contends that the tapes colored the ruling of the Chancellor such that he was unable to consider the best interest and welfare of Michael.

The standard by which this Court reviews a trial judge's decision to admit evidence was stated in this Court's decision in Stewart v. Stewart, 645 So.2d 1319 (Miss.1994). There quoting Century 21 Deep South Properties v. Corson, 612 So.2d 359 (Miss.1992), the Court said, "[t]he relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal may be had only where that discretion has been abused. [citations omitted] Unless the trial judge's discretion is so abused as to be prejudicial to a party, this Court will not reverse his ruling." Id at 1320 citing Century 21 Deep South Properties, at 369.

Steve's first argument is that Carol's taping of his conversations with his children violates federal law. Title III of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. § § 2510-2522 ("Title III"), deals with wire, electronic and oral communications interception. It generally prohibits interception and disclosure of wire, oral and electronic communications except those specifically provided for in the Act. 18 U.S.C. § 2511. If communications are intercepted in violation of Section 2511, they are prohibited from being used as evidence in a trial by Section 2515.

Section 2511, in pertinent part, reads:

Interception and disclosure of wire, oral, or electronic communications prohibited

(1) Except as otherwise specifically provided in this chapter any person who--

(a) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication

....

shall be fined not more than $10,000 or imprisoned not more than five years, or both.

18 U.S.C. § 2511. If a communication is intercepted in violation of Section 2511, then Section 2515 prohibits that intercepted communication from being used as evidence in a trial.

First, Steve cites Kratz v. Kratz, 477 F.Supp. 463 (E.D.Pa.1979), and Heggy v. Heggy, 944 F.2d 1537, 1540 (10th Cir.1991), cert. denied, 503 U.S. 951, 112 S.Ct. 1514, 117 L.Ed.2d 651 (1992), to support his position that Carol meets the definition of "any person." Kratz and Heggy support the proposition that "any person" means "any individual" as it is defined in Title III. We agree that Carol is "any person" within that meaning. The next issue is whether Carol "intentionally intercepted any wire communication." 18 U.S.C. § 2511(1)(a). The Fifth Circuit addressed this issue in Briggs v. American Air Filter Company, 630 F.2d 414, 417 (5th Cir.1980), and said that a telephone conversation is a wire communication. Finally, did Carol intentionally intercept these wire communications? Title III defines intercept as "the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device." 18 U.S.C. § 2510(4). In interpreting "intercept", the Fifth Circuit has said,

[i]f a person secrets a recorder in a room and thereby records a conversation between two others, an "acquisition" occurs at the time the recording is made. The acquisition itself might be said to be "aural" because the contents of the conversation are preserved in a form...