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[W] In re Marriage of Deborah Almquist

September 08, 1998

IN RE MARRIAGE OF DEBORAH ALMQUIST, PETITIONER-APPELLANT, AND FRANK ALMQUIST, RESPONDENT-APPELLEE.


The opinion of the court was delivered by: Justice Breslin

Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois

No. 96--D--1407

Honorable Robert C. Lorz Judge, Presiding

Deborah Almquist filed a petition seeking dissolution of her marriage to Frank Almquist. The court granted temporary custody of the couple's only child, H.A., to Deborah and limited telephone visitation to Frank. Later, Frank filed a petition for adjudication of indirect criminal contempt alleging Deborah had failed to comply with the court's order concerning telephone visitation. The court granted Frank's petition, sentenced Deborah to two years of court supervision, and ordered her to pay Frank's attorney fees. On appeal, Deborah contends: (1) the court's admission into evidence of an illegally recorded audio- tape was reversible error; and (2) the evidence was insufficient to find her guilty of indirect criminal contempt. For the reasons that follow, we affirm.

FACTS

Frank and Deborah Almquist were married in 1989. Their daughter, H.A., was born in 1991. In 1996, Deborah filed a petition for dissolution of marriage. The trial court granted temporary custody of H.A. to Deborah. Subsequently, Frank requested telephone visitation with H.A. The trial court entered a written order which provided as follows:

"[Frank] shall be allowed [the] right to telephone visitation with minor child on each Monday Wednesday at 8:00 PM and each Thursday at 8:30 PM ***. The phone calls shall be com- menced within 15 minutes of the scheduled times."

On May 27, 1997, Frank filed a petition for adjudication of indirect criminal contempt alleging Deborah failed to comply with the court order concerning telephone visitation. At the hearing on the petition, Frank testified he called Deborah's home at 8 p.m. on Monday, May 12, 1997, but was never allowed to speak with H.A. Instead, Deborah attempted to engage Frank in argument. Frank testified he did not argue with Deborah, but continued to ask to speak to H.A.

Frank testified he spoke to H.A. for approximately three minutes on Wednesday, May 14, 1997. His telephone conversations with H.A. typically last only two or three minutes.

Frank testified he called H.A. on May 15, 1997. During their conversation, a recording was played at high volume in the background. Frank recognized the recording as his "suicide tape." Frank explained that the tape was a recording of his own voice he had made approximately 1½ years ago. Frank stated that Deborah had taken the tape from his home.

Frank recorded the May 15 telephone call to his daughter with the aid of his answering machine. He affirmed that the tape was an accurate reproduction of the telephone call. He also stated that Deborah's voice does not appear on the tape.

The trial court admitted the audiotape of the telephone call into evidence and it was played in open court. The tape begins with two short, uneventful telephone calls between Frank and H.A. On the tape, Frank states that the calls took place on May 1, 1997, and May 14, 1997.

The tape proceeds with the sound of the phone ringing and then being picked up. No one speaks into the phone, but Frank's "suicide tape" can be heard playing in the background. The tape continues as follows with the "suicide tape" running in the background:

FRANK: Hello. Hello, [H.A.]? Hello, [H.A.]. Hello. Let me talk to [H.A.], please. OK, this is April, no, this is May 16th.

H.A.: Hello.

FRANK: Hi.

H.A.: Hello.

FRANK: What are you up to?

H.A.: [Unintelligible] ...


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