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In re Almquist

November 25, 1998

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


The opinion of the court was delivered by: Justice Breslin

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 1998

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

Honorable Robert C. Lorz Judge, Presiding

Modified Upon Denial of Rehearing

Respondent, Frank Almquist, filed a petition for adjudication of indirect criminal contempt alleging that the petitioner, Deborah Almquist, failed to comply with the trial court's order granting him limited telephone visitation with their only child, H.A. The court granted the petition and sentenced Deborah to two years of court supervision. Because we hold that the playing of an audio tape in the background during a telephone conversation does not constitute a "conversation" as defined in the Illinois eavesdropping statute (720 ILCS 5/14--1 et seq. (West 1996)), 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 and received telephone visitation with H.A. The order gave Frank the right to telephone visitation with H.A. every Monday, Wednesday and Thursday evening.

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 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." He explained that the tape was a recording of his own voice he had made approximately 1½ years earlier.

Frank testified that, with the aid of his answering machine, he recorded the May 15 telephone call to his daughter as well as all of the other calls that are the subject of this hearing. The trial court admitted the audiotape of the telephone call into evidence. On the tape a phone can be heard ringing. When the receiver is picked up, no one speaks into the phone, but Frank's "suicide tape" can be heard playing in the background. Frank and H.A. then have a short conversation while the "suicide tape" continues to play in the background.

Frank testified he called H.A. four days later. 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 a short time, Frank hung up while the "suicide tape" continued to run.

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 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 telephone visitation on May 12, 15 and 19. The court ...


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