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In re Marriage of Roney

July 17, 2002

IN RE: THE MARRIAGE OF MARY KAY RONEY,
PETITIONER-APPELLEE, AND CHRISTOPHER J. RONEY, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Champaign County No. 00D700 Honorable Arnold F. Blockman, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

Released for publication.

IN RE: THE MARRIAGE OF MARY KAY RONEY,
PETITIONER-APPELLEE, AND CHRISTOPHER J. RONEY, RESPONDENT-APPELLANT.

Appeal from Circuit Court of Champaign County No. 00D700 Honorable Arnold F. Blockman, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

October 2000, petitioner, Mary Kay Roney, filed a petition to dissolve her marriage to respondent, Christopher J. Roney. In January 2001, Mary Kay filed (1) a motion, seeking to require Christopher to turn over tape recordings of her telephone conversations; and (2) a motion in limine to exclude the recordings from evidence. In May 2001, the trial court ordered Christopher to turn over all of the tape recordings Mary Kay had requested in discovery. In August 2001, the court found Christopher to be in indirect civil contempt for failing to turn over the tape recordings as ordered.

Christopher appeals, arguing that the trial court's order violates his fifth amendment privilege against self-incrimination (U.S. Const., amend. V) because the act of turning over the recordings would constitute a testimonial communication incriminating him in the criminal offense of eavesdropping (720 ILCS 5/14-2(a)(1) (West 2000)). We reverse in part, vacate in part, and remand for further proceedings.

I. BACKGROUND

Mary Kay and Christopher married in November 1983. As stated, Mary Kay initiated dissolution proceedings, and in January 2001, she filed a motion in limine and sought a turnover order.

A. Proceedings Leading to the Turnover Order

Along with her motion requesting a turnover order, Mary Kay filed an affidavit in which she stated that (1) she discovered wiretapping equipment in the attic of the marital residence; (2) Christopher admitted taping her telephone conversations; (3) she did not consent to the taping; and (4) she understood that approximately 30 tapes existed. In response to Mary Kay's motion, Christopher asserted his fifth amendment privilege against self-incrimination.

At a March 2001 hearing on Mary Kay's motions, Thad Trimble, a Champaign County sheriff's department evidence officer, testified regarding the items that Mary Kay had submitted to the police. Trimble stated that he took possession of "the GE tape recorder and plug-in, the white Radio Shack eavesdropping device, the Gemini phone modular plug, [a] crimping tool, seven cassette tapes with tape recorder, [and] three white cassette tapes with storage cases."

Mary Kay testified that on October 16, 2000, she went into the attic because she suspected that Christopher was storing pornography there. She explained that she had heard him going into the attic on a daily basis over the past eight months. The attic did not have a floor, and insulation covered most of the area. After a half hour poking around with a mop handle and lifting insulation, Mary Kay found the telephone recording device. In mid-November 2000, Mary Kay confronted Christopher about splicing the phone line, and Christopher admitted doing it and said that he did it to protect her.

The trial court allowed Mary Kay's counsel to play two of the tapes, only one of which contained recordings of Mary Kay's telephone conversations. Mary Kay called Christopher as an adverse witness, but he refused to ...


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