Wiretapping as Part of Divorce

    Experts are warning anyone involved in divorce to make certain they don’t step over any legal lines after a Nebraska man filed a civil lawsuit against his ex-wife, saying she hid a voice recorder in his daughter’s teddy bear to spy on him.

"This is actually a great story about the extremes a psycho mom will go to, and how it only increases the rancor" in a divorce, said California family law attorney David Pisarra. He said the bigger issue, is "how people try to get dirt on the other side and how fruitless it usually is."

According to a report in the Associated Press, the federal lawsuit alleges that the woman and her father tried to use the voice recordings in a custody battle involving the couple’s young daughter. The lawsuit seeks $700,000 plus damages for violation of privacy and violation of state and federal wiretapping laws.

Bill Mitchell, a private investigator who has been featured on the Dr. Phil show, said it’s common for former spouses to consider spying on their ex-partners. His agency has received thousands of questions about voice and video recording from people all over the country. He always advices they check their state law, which varies, and the federal law.

California family law attorney Warren Shiell agreed: “I always advise clients against this kind of eavesdropping since it is illegal. Federal law and most states have passed wiretapping statutes that make it illegal to listen in or record conversations without consent of both parties or court order.”

“I have had cases where the client has told me that their spouse is harassing them over the telephone or making derogatory remarks about them to their children. We’ve gone to court to get an order allowing both parties to record telephone conversations and those recordings are OK to use,” Shiell said.

In the Omaha case, local media reports suggest the woman, Dianna Divingnzzo, used the teddy bear to conduct surveillance because it was her daughter’s favorite toy. The bear’s head was removed, the voice recorder implanted and the head reattached as part of the scheme, which was supposed to monitor visitations and provide information that would keep the child’s father, William Duane Lewton, from obtaining additional custody rights. The child’s father recently was granted partial custody.

“Each time these incidents surface, it’s a reminder to the public that no one is above the law,” Mitchell said. Cases like this one show how “desperate” people are -- “violating other people’s rights just to win a custody battle,” he said.The irony of this case, according to Mitchell, is that the woman and her father “recorded hundreds of conversations,” but “the most important conversation missing is the one with their attorney” who, the lawsuit claims, approved the wiretapping. The attorney has disputed that claim.

“I suspect they never consulted with an attorney on this very critical decision,” Mitchell said. “And if they had, no taped conversations would have surfaced in their child custody suit, thus no violation of state and federal statutes.” Mitchell thinks the ex-husband might win the case in court. “The act of covertly installing a tape recorder inside a teddy bear took planning, management and countless hours of time all to collect shreds of evidence…. Even if his conversation proved he was pedophile, the evidence was obtained illegally and thrown out. Too bad they didn’t hire a professional investigator to prove their case against him.”

“If Dianna or Sam Divingnzzo recorded conversations inside their own residence, vehicles, or in the presence of William Duane Lewton this episode is a non-issue,” said Mitchell, whose firm conducts electronic debugging and countermeasure services in marital and custody battles. “But when you use any form of a recording device (without permission) to document conversations inside the residence of another is a classic case of “wire tapping.” 

In addition, Mitchell said wiretapping laws now prohibit videotaping. “With the inception and development of miniature cameras, our investigative industry must exercise caution” when using them. In one instance, his firm discovered an ex-spouse, no longer living with his wife, had installed spyware on his ex-wife’s computer before their divorce, “accessing all her electronic communications.” “We blocked his access and future invasion of privacy,” he said.

Mitchell pointed out that former Hollywood private investigator Anthony Pellicano is in federal prison for wiretapping. “His contempt for the law finally caught up with him,” he said.
 
“Over my career I’ve heard of and from desperate people repeatedly seeking short cuts to our legal system. They want to record their partner’s conversations as evidence. I encourage them to record the exchanges but only when they are part of the dialogue,” he said. The bottom line is simple: “Obtaining oral communications, without permission, violates our laws. We must continue to enjoy this legal protection and privacy rights,” Mitchell said.

To learn about the current laws regarding recording conversations, click on this link: http://www.rcfp.org/taping/   


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