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[W] In re Marriage of Deborah Almquist

Illinois Appellate Court


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] a tape.

FRANK: Yeah, I know, I don't know why your ma is playing that tape, but how you been? Huh?

H.A.: Did you say that in court?

FRANK: What court?

H.A.: Court.

FRANK: Huh?

H.A.: [Unintelligible] go to court today.

FRANK: You going to court today?

H.A.: Yeah.

FRANK: Oh. What are you going to court for? Huh?

H.A.: [Unintelligible] go to court. OK. [Unintelligible].

FRANK: [H.A.]? [H.A.]. Hello, [H.A.]. [H.A.]. I love you. I let you go now.

H.A.: Like it?

FRANK: No, I don't like it. [Sound of telephone receiver being hung up]

FRANK: That was Debbie playing the tape of my thing to my daughter which is very wrong in my opinion. Goodbye."

Frank testified he called H.A. on May 19, 1997. This time only the "suicide tape" was audible on the other end of the line. Frank repeatedly asked to speak to H.A., but was never able to speak with her. After three or four minutes, Frank hung up while the "suicide tape" continued to run.

On the next portion of the tape presented in evidence, a telephone can be heard ringing followed by the sound of a receiver being picked up. Again, no one speaks into the receiver, but Frank's "suicide tape" can be heard playing in the background. Frank repeatedly requests to speak to H.A. After a short time, Frank hangs up.

On cross-examination, Frank admitted he did not know whether Deborah was home at the time of the phone calls. Frank also agreed he had no idea who was playing the "suicide tape" in the background.

Deborah testified that, at the times appointed for Frank's telephone visitation, she usually waits for caller ID to indicate the number before instructing H.A. to answer the call. Deborah stated she then leaves the room. Deborah testified that, to the best of her knowledge, Frank was able to speak with H.A. on all of the dates in question. Deborah denied playing the "suicide tape" in the background during Frank's telephone visitation. Deborah testified H.A. often plays tapes on Deborah's tape player, but that H.A. does not have access to her copy of the "suicide tape." Deborah asserted that there are other copies of the "suicide tape," and that Frank's "sister or sisters" may have one or more copies. Deborah testified that no one lives at the residence besides H.A. and herself.

The trial court found Deborah guilty of indirect criminal contempt for failure to provide visitation on May 12, 1997, May 15, 1997, and May 19, 1997. The court denied Deborah's motion for new trial.

ANALYSIS

Initially we note that Frank, the appellee, has not filed a brief in this case. However, we find that the record and appellant's brief are sufficient to allow us to address the merits of this appeal without the benefit of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 345 N.E.2d 493 (1976).

I. Admission of the Audiotape

On appeal, Deborah contends the trial court erred in admitting Frank's tape of his telephone visitation with H.A. Deborah maintains that the tape is inadmissible because it was recorded in violation of the Illinois eavesdropping statute 720 ILCS 5/14--1 et seq. (West 1996)).

Generally, a reviewing court will not disturb a trial court's ruling on the admissibility of evidence absent an abuse of discretion. People v. Enis, 139 Ill. 2d 264, 564 N.E.2d 1155 (1990). However, a matter of statutory construction is a question of law subject to de novo review. Village of South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 561 N.E.2d 295 (1990). Here, the admissibility of Frank's tape depends upon a judicial construction of the eavesdropping statute and an appli- cation of the statute to undisputed facts. Thus, the matter before this court is a question of law which we will review de novo. Bender v. Board of Fire and Police Commissioners of the Village of Dolton, 183 Ill. App. 3d 562, 539 N.E.2d 234 (1989).

The Illinois eavesdropping statute provides in relevant part that "[a] person commits eavesdropping when he uses an eavesdropping device to hear or record all or any part of any conversation unless he does so *** with the consent of all of the parties to such conversation ***." 720 ILCS 5/14--2(a)(1) (West 1996). Any evidence obtained in violation of the eavesdropping statute "is not admissible in any civil or criminal trial ***." 720 ILCS 5/14--5 (West 1996).

A. The Trial Court's Ruling

In denying Deborah's motion for a new trial, the trial court ruled that Frank's tape was admissible because it fell within the exemption to the eavesdropping statute provided at section 14--3(i). 720 ILCS 5/14-- 3(i) (West 1996). That section exempts from the statute the "[r]ecording of a conversation made by or at the request of a person *** who is a party to the conversation, under reasonable suspicion that another party to the conversation is committing, is about to commit, or has committed a criminal offense against the person or a member of his or her immediate household, and there is reason to believe that evidence of the criminal offense may be obtained by the recording." (Emphasis added.) 720 ILCS 5/14--3(i) (West 1996). We hold that this exemption does not apply to this case because Frank had no reasonable basis to suspect that the only other party to the conversation, his six-year-old daughter, was likely to commit a crime during his telephone visitation with her.

B. The 1994 Amendment of the Eavesdropping Statute

We now consider whether the tape is admissible on another ground. See People v. Paarlberg, 243 Ill. App. 3d 731, 612 N.E.2d 106 (1993) (issue on appeal is the trial court's judgment, not the rationale for its judgment). Specifically, we address whether Frank's tape, or any portion of it, is a recording of a "conversation" within the meaning of the eavesdropping statute.

In 1994, the General Assembly added a definition of "conversation" to the eavesdropping statute. Pub. Act 88--677, eff. December 15, 1994 (adding 720 ILCS 5/14--1(d) (West 1996)). As amended, the eavesdropping statute defines "conversation" as "any oral communication between 2 or more persons regardless of whether one or more of the parties intended their communication to be of a private nature under circumstances justifying that expectation." 720 ILCS 5/14--1(d) (West 1996).

Prior to this amendment, our supreme court held that the eaves- dropping statute did not prohibit the recording of a conversation by a party to that conversation or one known by the parties thereto to be present. People v. Beardsley, 115 Ill. 2d 47, 503 N.E.2d 346 (1986); People v. Herrington, 163 Ill. 2d 507, 645 N.E. 957 (1994). The court explained that there can be no invasion of an expectation of privacy when one party to a conversation makes a recording. Beardsley, 115 Ill. 2d 47, 503 N.E.2d 346.

During a debate on the 1994 amendment, Senator Dillard explained that the amendment "restores an all-party consent provision to our law in Illinois, regardless of whether the parties really intended their conversation to be private or not." 88th Ill. Gen. Assem., Senate Proceedings, April 21, 1994, at 139. In addition, Senator Dudycz explained that the amendment was intended to "reverse the Beardsley eavesdropping case ***." 88th Ill. Gen. Assem., Senate Proceedings, May 20, 1994, at 42. Thus, the amended statute prohibits the recording of any conversation without the consent of all parties regardless of any party's expectation of privacy. See Collins v. Board of Trustees of the Fireman's Annuity & Benefit Fund of Chicago, 155 Ill. 2d 103, 610 N.E.2d 1250 (1993) (amendment that contradicts a recent interpretation of a statute indicates amendment was enacted to clarify legislature's original intent).

1. Playing the "Suicide Tape"

Under the eavesdropping statute, "conversation" means "any oral communication between 2 or more persons ***." 720 ILCS 5/14--1(d) (West 1996). In playing the "suicide tape," Deborah was undoubtedly express- ing her disdain for Frank and she was certainly seeking to disrupt the telephone visitation. Her efforts, however, did not constitute partic- ipation in a "conversation" in any ordinary sense of that term. Rather, she was engaging in criminal conduct aimed at frustrating Frank's tele- phone visitation.

We are mindful that a statute which defines the very terms it uses should be construed according to those definitions. Garza v. Navistar International Transportation Corp., 172 Ill. 2d 373, 666 N.E.2d 1198 (1996). However, the addition of a definition of "conversation" to the eavesdropping statute was an effort narrowly tailored to the goal of removing any expectation of privacy element from the crime of eavesdrop- ping. It was not the legislature's intent to provide a definition of "conversation" so broad as to encompass any audible expression whatsoever. Accordingly, we hold that Deborah was not participating in a "conversation" within the meaning of the eavesdropping statute when she played a recording of Frank's voice for the purpose of interfering with his telephone visitation. Therefore, because the eavesdropping statute applies only to the recording of conversations, the trial court committed no error in admitting that portion of Frank's tape which recorded the "suicide tape."

2. Frank's Discussion with H.A.

Turning our attention to that portion of the tape which recorded the verbal exchange between Frank and H.A. When Frank and H.A. spoke on the telephone, we find that they were clearly engaging in a conversation covered by the statute. Frank made no showing that H.A. consented to his recording of their conversation. Moreover, there is no applicable exemption under the statute. Therefore, with respect to the Discussion between Frank and his daughter, we hold that the trial court erred in admitting this portion of the recording.

The trial court's error, however, does not require reversal of its judgment. The allowance of inadmissible evidence is harmless error if properly admitted evidence was sufficient to prove each element of the crime beyond a reasonable doubt. People v. Lee, 162 Ill. App. 3d 972, 516 N.E.2d 360 (1987). After a thorough review of the record, we conclude that the Discussion between Frank and his daughter was immate- rial to Deborah's conviction for indirect criminal contempt.

II. Sufficiency of the Evidence

To sustain a finding of indirect criminal contempt for the violation of a court order outside the presence of the court, two elements must be proved: (1) the existence of a court order; and (2) a willful violation of that order. People v. Totten, 118 Ill. 2d 124, 514 N.E.2d 959 (1987). Each of these elements must be proved beyond a reasonable doubt. People v. Minor, 162 Ill. App. 3d 140, 514 N.E.2d 1042 (1987). A reviewing court will not disturb a trial court's finding of indirect criminal contempt if, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Townsend, 183 Ill. App. 3d 268, 538 N.E.2d 1297 (1989).

Frank's testimony and the admissible portions of Frank's tape established that the "suicide tape" ran in the background during his telephone visitation with H.A. In addition, Deborah testified H.A. did not have access to Deborah's copy of the "suicide tape." From these facts, the trial court could have rationally concluded that it was Deborah who played the "suicide tape" at the times in question.

However, Deborah contends that, even if proved, her conduct did not violate the express terms of the trial court's order. If we were to accept Deborah's strict construction of the trial court's order, she would have been in compliance with the court's order so long as a connection was made when Frank called for visitation. Under her theory, as the trial court noted, it would make no difference "whether there [was] a brass band [playing] in the background or jet noise being played in the background." We disagree. It is clear that a reasonable person would understand that implicit in the trial court's order was a requirement that Frank be permitted telephone visitation free of obnoxious interference by Deborah. Therefore, we hold that the evidence properly admitted against Deborah was sufficient for a rational trier of fact to find her guilty of indirect criminal contempt beyond a reasonable doubt.

For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

Affirmed.

HOMER, P.J., and LYTTON, J., concur.

19980908


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