Petition — Lopp v. Lopp

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Supreme Court, & &

FFLER

1978

. — MICHAEL ROBAK, JRCLERK

Supreme Court of the United States

OCTOBER TERM, 1978

xo. €8-928

JUDITH LOPP (DUNCAN), Petitioner,

vs.

JAMES D. LOPP, JR., Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

*RODNEY H. GROVE

DAVID V. MILLER

JEFFERY L. LANTZ

ROBERT O. WILLIAMS, JR.

Grove, Miller, Lantz & Williams

908 Old National Bank Bldg.

Evansville, Indiana 47708

Phone: (812) 423-4433

(812) 464-3915

COUNSEL FOR PETITIONER

*Counsel upon whom service is to be made

Unigraphic, Inc., 1401 N. Fares Ave., Evansville, Ind. 47711, Fhone 424-3680

Page

Ce ee oe ACE ea CIS. Se ot l

FY ah ebb ie is DATA. 2

STATUT ee BNVOL VE 68a AI 2

QUESTION PRESENT ©. oe ae a. 2

yes gs i * SR eerenre ep 3

REASON FOR GRANTING REVIEW ................. 5

I. The Decision Below Conflicts With

the Clear and Unambiguous Language

ee OR EE een re ee 5

II. The Decision Below and the Opinions

of Various Federal Circuit Courts of

Appeal are in Conflict on the Correct

Interpretation of 18 U.S.C. 82510 et.

seq. to “Interspousal” Wiretap ..............005. 10

ee eS. RUSS ae ns oie le ire ok Se 12

APPENDIX A (18 U.S.C. 882510, 2511, 2515) ......... la

APPENDIX B_ (Opinion of the First

District Court of Appeals of Indiana) ............. 6a

APPENDIX C (Opinion and Order of

Supreme Court of Indiana granting

transfer from Indiana Court of Ap-

pea! and vacating Court of Appeals

GUN a wore wk ee dt ke ne bepes o's 19a

INDEX (cont’d.)

j Page

APPENDIX D (Order of Supreme Court

of Indiana denying petitioner’s re-

quest fora rehearing) .. ste eeeeebeceeewenseaes 39a

APPENDIX E (Portion of Transcript of

evidence containing petitioner’s first

objection to use of tape recorded

evidence in violation of 18 U.S.C. 25'S) .......... 40a

APPENDIX F (Portion of Transcript of

evidence containing petitioner’s ob-

jection at final hearing to the use of

tape recorded evidence in violation of

RS US CAUBORS | cxigredircs Fito as be yoenens ssi 4la

CITATIONS

Cases:

Anonymous v. Anonymous, 558 F. 2d 667

Ca GR: 1877)... ibaa Fane he cbc 04s 11

Beaber v. Beaber, 41 Ohio Misc. 95, 322

NE, 24910 (1974) on. give cicsonccnovestevocvtd 8

Gelbard v. U.S., 408 U.S. 41 (1972) 2... eee ee eee eens 7

London yv. London, 420 F. Supp. 944

(S.D.N.Y. 1976) aff'd sub. nom.

Anonymous v. Anonymous, 558 F. 2d

667 (2nd Cir. 1977)... ccsesinccsvcccsevesseves 11

Markham y. Markham, 265 So. 2d 59

(Fl. App. 1972) aff'd 272 So. 2d 813 (1973) ........ 8

iii

INDEX (cont’d.)

CITATIONS (cont’d.)

Rickenbaker v. Rickenbaker, 290 N.C.

373, 226 S.E. 24347 (1976) .......0c.cs0ece.

Simpson v, Simpson, 490 F. 2d 803 (Sth Cir, 1974) ...

U.S. v. Jones, 542 F.2d 661 (6th Cir. 1976) .........

U.S. v. Rizzo, ____F. 24_._(7th Cir. 1978) ........

White v. Longo, 190 Neb. 703, 212 N.W. 2d 84 (1973)

White v. Weiss, $35 F, 2d 1067 (8th Cir. 1976)

Statutes:

Oe Meret MUN RRS re ee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

NO.

JUDITH LOPP (DUNCAN), Petitioner,

JAMES D. LOPP, JR., Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF INDIANA

ee SP Be

The petitioner, Judith Lopp (Dithcan)fespectfully prays

that a writ issue to review the judgment and.opinion of the

_ Supreme Court of Indiana entered in these proceedings.

OPINIONS BELOW Gey

The opinion of the Supreme Court of Indiana is reported

at Inf. , 378 N.E. 2d 414 (1978), and appears in

* Appendix to this Petition. The opinion of the Indiana

Court of Appeals is reported at Ind. App. ____-_ , 370

N.E. 2d 977 (1977), and appears in Appendix f to this Peti-

tion.

JURISDICTION

The judgment of the Supreme Court of Indiana was en- ?

tered on July 20, 1978. Petitioner filed a timely Petition for

Rehearing, which was overruled on September 18, 1978. This

petition for a writ of certiorari was filed within ninety (90)

days of the Indiana Supreme Court’s order denying the Petition

for Rehearing. The Supreme Court of Indiana is the highest

court in Indiana having jurisdiction to review lower state court

decisions. This Court’s jurisdiction is invoked under 18 VJ.S.C.

1257 (3).

STATUTES INVOLVED

Portions of the Omnibus Crime Control and Safe Streets

Act of 1978, specifically 18 U.S.C. 882510, 2511 and 2515

are reprinted in Appendix A to this petition. These sections

of title 18 of the United States Code are sometimes referred

to in the lower courts’ opinions and in this petition as the

Federal Wiretap Statute or the Act. 18 U.S.C. 82515 provides:

§2515 PROHIBITION OF USE AS EVIDENCE

OF INTERCEPTED WIRE OR

ORAL COMMUNICATIONS

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communi-

cation and no evidence derived therefrom may be re-

ceived in evidence in any trial, hearing, or other pro-

ceeding in or before any court, grand jury, department,

officer, agent, regulatory body legislative committee,

or other authority of the United States, a state, or a

political subdivision thereof if the disclosure of that

information would be a violation of this chapter.

QUESTION PRESENTED

Does the Ominbus Crime Control and Safe Streets Act

of 1968, specifically 18 U.S.C. 82515, bar the use of tape

recorded conversations between a wife and an unrelated third

person as evidence in a divorce proceeding where the husband

obtains the tapes prior to filing a divorce petition by using a

tape recorder furnished by a private detective and with the

advice and instruction of the detective records the conver-

sations by attaching a self-activating tape recorder to the

telephone line located in the marital home.

STATEMENT OF THE CASE

On September 23, 1975, the respondent, James D.

Lopp, Jr., an attorney, filed a petition for dissolution of his

marriage to petitioner, Judith Lopp (Duncan). On the same

day, the petitioner went to the law office of her husband.

Her father-in-law, James D. Lopp, also an attorney, informed

her that if she did not consent to temporary custody of.the

parties’ minor child, James D. Lopp, III, with her husband,

various taped phone conversations would be published to

other persons including the petitioner’s former husband. The

tapes were obtained when respondent, under the direction

of Rip Kirby, a private investigator, placed a recording device

on the telephone located in the marital residence. The re-

- cordings were made on September 20, 1975, on a tape re-

corder owned by Rip Kirby, president of Ira Clark Detective

Agency in Evansville, Indiana.

On September 23, 1975, the petitioner, without counsel,

signed an agreed entry giving respondent custody of the parties’

child during the pendency of the action. On September 30,

1975, petitioner, against her first attorney’s advice, signed a

second agreed order which also provided respondent with

temporary custody of the parties’ child.

On October 3, 1975, petitioner filed a petition for re-

hearing on the issue of temporary custody. Petitioner alleged

that the first two orders were obtained under coercion when

respondent and her father-in-law, both attorneys, threatened

her with publication of various tape recordings.

On November 25, 1975, a hearing was held on petitioner’s

motion to set aside the prior orders and on various other

pending motions. At the hearing, the respondent-husband

offerred into evidence the tape recorded conversations. (See

Transcript of the Evidence p. 471.) (Reference to the Transcript

of the Evidence is abbreviated as TR. in this petition.) Petitio-

ner objected to the introduction of the tapes into evidence

based on the bar of such evidence found in the Federal Wiretap

Statute, specifically 18 U.S.C. §2510 et. seq. (The full text

of the objection and ruling appears in Appendix E to this

petition.) The trial court overruled the objection and ad-

mitted the tapes into evidence.

After taking under advisement the motion to set aside

the agreed orders, the trial court overruled the motion on

December 3, 1975.

The final hearing on the dissolution petition was held

on December 10, 1975. On December 11, 1975, the respon-

dent was called as a witness during the presentation of his

evidence-in-chief on his petition for dissolution of the marriage.

On direct examination, the wiretapped telephone conver-

sations were again offered into evidence by respondent as

his exhibit number 8. (TR. p. 674.) Petitioner objected to

the admission of the tapes into evidence. Preliminary cross-

examination by petitioner’s counsel prior to the introduction

of the tapes established that respondent did not meet any of

the qualifications under §2511 which contains various detailed

exceptions to the wiretap statute’s general rule that the act of

obtaining wiretaps of another’s conversations is unlawful.

(TR. pp. 675-678.) (The entire objection based on 18 U.S.C.

§2515 at the final hearing appears in Appendix F of this peti-

tion.) The petitioner’s objection was overruled and the tapes

were admitted as substantive evidence during the respon-

dent’s case-in-chief on his petition for dissolution of ildeen.

On December 22, 1975, the trial court entered its judg-

ment granting the respondent’s petition for dissolution. The

court’s judgment also awarded permanent custody of the

parties’ minor child, James Lopp, III, to the respondent and .

made various divisions of the marital property.

Under Rule 59 of the Indiana Rules of Appellate Proce-

dure, a party has sixty (60) days from the entry of judgment to

file a motion to correcterrors. On February 20, 1976, petitioner

filed her motion to correct errors which contained as specifi-

cation number 9 the claim that the admission of the tapes into

evidence at the provisional hearing and at the final hearing

was erroneous and barred by 18 U.S.C. 82515. (TR. p. 1.) A

transcript of both objections was included in the memorandum

of facts and grounds in support of the motion to correct errors.

On March 3, 1976, the trial court overruled the peti-

tioner’s motion to correct errors; and petitioner timely per-

fected her appeal to the Indiana Court of Appeals, First District.

After extensive briefing by both parties, the Indiana

Court of Appeals entered its decision on December 28, 1977.

The Court of Appeals reversed and remanded the case to the

Vanderburgh Superior Court. The essence of the Court of

Appeals’ decision was that the introduction of the tapes in

evidence was barred’by 18 U.S.C. §2515. (The opinion appears

in full in Appendix B to this petition.)

On January 13, 1978, respondent filed a timely motion

for rehearing in the Indiana Court of Appeals. The motion

was denied February 6, 1978. On February 21, 1978, respon-

dent filed a timely Petition to Transfer the appeal to the Su-

preme Court of Indiana.

On July 20, 1978, the Supreme Court of Indiana granted

transfer (review) of the appeal and vacated the Indiana Court

of Appeal’s decision and affirmed the decision of the triai

court, holding that the admission of the wiretapped eviden :e

did not violate 18 U.S.C. §2510 et. seq. (The opinion appears

in Appendix C to this petition.)

On August 7, 1978, petitioner filed her timely motion

for rehearing before the Supreme Court of Indiana. The motion

for rehearing was denied on September 18, 1978.

REASON FOR GRANTING THE WRIT

IL.

THE DECISION BELOW CONFLICTS

WITH THE CLEAR AND UNAMBIGUOUS

LANGUAGE OF THE 18 U.S.C. §2515

The language of Section 2515 could not be clearer. No

part of communications intercepted in violation of the statute

“may be received in evidence in any trial, hearing or other pro-

ceeding in or before any court, grand jury, department, officer,

agency, regulatory body, legislative committee or other authori-

ty of the United States, a state or a political subdivision there-

A review of the preliminary and foundation testimony

of the respondent prior to the introduction of the tapes into

evidence (see Appendix E and F) establishes that the exceptions

to violation of the Act contained in Section 2511 weze not

available under the facts and circumstances of respondent’s

method and act of intercepting the wife’s conversations. Indeed,

the respondent admitted in his statement of the facts presented

in his Appellee’s brief before the Indiana Court of Appeals

that he attached an electronic recording device to his telephone

and recorded incoming conversations. The husband also ad-

mitted that at no time did he obtain the consent of either

his wife or any other party to the telephone conversations.

As the Indiana Court of Appeals discussed in its opinion,

Section 2515 is clear and unequivocal. The term “any person”’

means exactly whet it means in everyday English usage. Any

person, including a spouse, may not secretly place wiretap

equipment on a telephone within the marital home and then

claim an exemption from the statute. As the Indiana Court

of Appeals noted, the United States Congress explicitly detailed

the exemptions from the coverage of the Act; “interspousal”

wiretaps were not exempted. It is difficult to imagine what

more Congress could have done to satisfy the respondent’s

contention that the term “any person” does not apply to him.

The Indiana Court of Appeals discussed the legislative

history of the Wiretap Statute and concluded that Congress

was aware of the misuse of electronic surveillance equipment

in marital disputes and intended to reach such abuses with the

wiretap statute. [See Appendix B and discussion of legislative

history in U.S. v. Jones, 542 F. 2d 661 (6th Cir. 1976). See

also Senate Report No. 1097 (1968 U.S. Cong. and Ad. News

at 2112) which provides that any person is, with the exception

of governmental entities, to be given a comprehensive definition

in interpreting the wiretap statute (1968 U.S. Cong. and Ad.

News at 2179)].

There can be little doubt that Section 2515 applies to

the trial court proceedings. The Vanderburgh Superior Court

is a court of general jurisdiction under Indiana law. Section

2515 mandates that whenever any wire communication has

been intercepted in violation of the statute (Section 2511 as

previously discussed), no part of the contents of the communi-

cation and no evidence derived from the cornmunication may

be received in any trial, hearing or other proceedings in or

before any court. The tapes were first introduced at a hearing

to set aside the Provisional Order. The tapes were again ad-

mitted into evidence during the husband’s case-in-chief at

the final hearing on the petition for dissolution of marriage.

In both instances, the tapes were admitted over the specific

objection of the petitioner based on the federal wiretap statute.

All the factors necessary to require exclusion of the

tapes were thus before the trial court. The oral or wire com-

munication was intercepted by the respondent who was not

excluded from the Act under Section 2511. The act of inter-

cepting the wife’s communication was proscribed by the act

and the use of the tapes of the conversations in the hearings

before the Vanderburgh Superior Court was barred by Section

2515. Under the unambiguous language of Section 2515 and

Gelbard v. U. S., 408 U.S. 41 (1972), the trial court committed

error in admitting the tapes into evidence.

The wiretap statute was designed to preserve the right

of privacy; and the right of privacy is an illusion without

substance if the failure to exclude illegally obtained evidence

by an attorney used against his wife in divorce proceedings

is not condemend by this Court.

Counsel for the petitioner has found only two other

reported decisions dealing with the exclusionary rule in Section

2515 applied to divorce proceedings. Understandably, the

decisions do not involve the federal court system as divorce

actions are a matter of state law. Section II of this Brief deals

with the diverse opinions rendered by federal courts in civil

and criminal proceedings brought as a result of a violation

of the wiretap statute during various domestic crises or pro-

ceedings.

In Rickenbaker v. Rickenbaker, 290 N.C. 373, 326 S.E.

2d 347 (1976), the Supreme Court of North Carolina held

that the trial court properly excluded from evidence tapes

obtained by a husband’s interception of his wife’s telephone

conversations. The court held that the interception by the

husband violated the federal wiretap statute.

In Beaber v. Beaber, 41 Ohio Misc. 95, 322 N.E. 2d

910 (trial court reported decision 1974), aff'd unreported

Appeal No. 1487, Aug. 4, 1975, Ohio App. 5th Dist., the

appellate court affirmed a trial court’s admission of wire-

tap evidence for impeachment of the wife’s testimony. In

contrast, the present appeal does not present any question

of the use of illegally obtained evidence for impeachment,

rather the tapes in the present appeal were introduced by

the husband in both instances in his case-in-chief.

In ‘a related question, the court in Markham v. Mark-

ham, 265 So. 2d 59 (Fl. App. 1972), aff'd 272 So. 2d 813

(1973), announced that under the Florida Constitution and

a Florida wiretap statute, a wiretap placed by the husband

on the wife’s phone was illegal. The majority in Markham

stated that a husband has no more right to tap a telephone

located in the marital home than a wife has the right to tap

a telephone in a husband’s office. The Markham court did not

discuss or rely on the federal statute; the decision is cited to sup-

port the natural and statutory rights of either spouse to privacy.

Various federal courts have dealt with the application

of criminal and civil (Section 2520) remedies for wiretap vio-

lations incidental to divorce proceedings. In U.S. v. Jones,

542 F. 2d 661 (6th Cir. 1976), the court held that the district

court erred in dismissing an indictment based on 18 U.S.C.

2511 (a) and (d). The husband had placed a wiretap on the

wife’s phone; the husband and wife were not living together in

a “marital home” at the time of the interception. In rendering

its decision, the court observed:

The explicit language of 18 U.S.C. $2511 (1) (a) is that

“any person” who violates the section is liable .. . If

Congress had intended to create another exception to

Title III’s blanket prohibition of unauthorized wire-

taps, they would have included a specific exception for

interspousal wiretaps in the statute.

542 F. 2d at 671

The Jones court added:

It is not for this court to question the wisdom of Con-

gress and to establish an implied exception to a federal

statute by judicial fiat. Only Congress has authority to

amend 18 U.S.C. §2511...

542 F. 2d at 673

The Jones court specifically rejected the implied ex-

ception recognized by Judge Bell in his opinion in Simpson

v. Simpson, 490 F. 2d 803 (5th Cir. 1974). The Simpson

court held that a wife cannot bring a civil suit under Section

2520 for the interception of telephone conversations by the

husband. The court created an “implied exception” in the

statute and concluded:

As should be obvious from the foregoing, we are not

without doubts about our decision. However, we have

concluded that the statute is not sufficiently definite

and specific to create a federal cause of action for the

redress of appellant’s grievances against her former

husband. Our decision is, of course, limited to the

specific facts of this case.

490 F. 2d at 810

The Jones court obviously felt more secure in its reason-

ing when it stated:

The language of § 2511 (1) (a) quite clearly expresses

a blanket prohibition of all electronic surveillance except

under circumstances specifically enumerated in the

statute . . . The natural presumption when construing

a statute is that Congress meant what it said.

542 F. 2d at 667

The petitioner can only add that she also believes Con-

gress meant what it said, and the wiretap evidence was not

admissible in the present case. Both the trial court and the

Indiana Supreme Court ignored the unambiguous language

of the exclusionary rule contained in Section 2515 and im-

properly engrafted an implied exception on their version

of the federal statute. The resulting gross injustice to the

petitioner can only be corrected by granting the petition

for Writ of Certiorari to review the opinion and judgment

of the Supreme Court of Indiana.

IL.

THE DECISION BELOW AND THE OPINIONS OF

VARIOUS FEDERAL CIRCUIT COURTS OF APPEAL

ARE IN CONFLICT ON THE CORRECT INTERPRETATION

OF 18 U.S.C. 82510 et. seq. TO “INTERSPOUSAL” WIRETAP

The decision below conflicts with various circuit court

opinions, and the various circuit court opinions are in conflict

on the application of 18 U.S.C. §2510 et. seq. to interspousal

wiretaps. The decision below is in direct conflict with the

Rickenbaker, supra, decision regarding the application of the

exclusionary (Section 2515) mile to divorce proceedings.

Rickenbaker, as previously discussed, is an opinion by the

Supreme Court of North Carolina.

On the federal level, the various circuits are in conflict

over application of the statute. In U.S. v. Jones, supra, the

Eighth Circuit Court of Appeals held that the district court

improperly dismissed an indictment which charged a husband

with violating Section 2511 by intercepting a telephone con-*

versation of his wife and another party. In Simpson v. Simpson,

supra, the Fifth Circuit Court of Appeals in an opinion by

Judge Bell held that the civil remedy provided in Section 2520

did not extend to a wife whose telephone was tapped by her

husband. The Simpson rationale creating an implied exemption

to civil liability was followed by the Second Circuit Court of

Appeals in London v. London, 420 F. Supp. 944 (S.D.N.Y.

1976) aff'd sub non. Anonymous v. Anonymous 558 F. 2d 667

(2nd Cir. 1977). In White v. Weiss, 535 F. 2d 1067 (8th Cir.

1976) the Eighth Circuit Court of Appeals held that a husband

could maintain a civil action under Section 2520 against a

private detective who instructed the wife and supervised her

installation of a wiretap on the parties’ telephone. (In a com-

panion case, the Nebraska Supreme Court in White v. Longo,

190 Neb. 703, 212 N.W. 2d 84 (1973), set aside a conviction

for criminal conversion due to the erroneous admission of the

recorded telephone conversations into evidence. The opinion

was based on the error in not applying the exclusionary rule

provided in Section 2515). More recently in U.S. v. Rizzo,

——F. 2d 7th Cir. 1978) (Appeal No. 77-1841 decided

September 1, 1978), the Seventh Circuit Court of Appeals

affirmed a conviction of a private investigator under Section

2511 (1) where the private investigator as charged in the indict-

ment either installed or instructed the wife on the installation

of a recording device on the telephone located in the marital

home. The Seventh Circuit attempted to distinguish Simpson,

supra, on the basis of a “third party intrusion into the marital

home”. The Seventh Circuit indicated that the Simpson opinion

indicated a different view would be taken of third party in-

trusions. (See p. 4 of Rizzo slip opinion.) The Jones court

found this point:

a classic “distinction without a difference.” For purposes

of federal wiretap law, it makes no difference whether a

wiretap is placed on a telephone by a spouse or by a

private detective in the spouse’s employ.

542 F. 2d at 670.

From a review of these federal decisions, it is apparent

that there is little if any harmony among the circuits on the

question of the application of the federal wiretap statute to

interspousal wiretaps. In addition, the Indiana Supreme Court’s

opinion in the present case conflicts with the Rickenbaker

decision and the rules announced in various circuit court

opinions as briefly analyzed in this petition. It is respect-

fully submitted that it is now appropriate for this Court to

formulate a rule for all courts to follow in applying the federal

wiretap statute to interspousal wiretaps.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Supreme

Court of Indiana.

Respectfully submitted,

*RODNEY H. GROVE

DAVID V. MILLER

JEFFERY L. LANTZ

ROBERT O. WILLIAMS, JR.

Grove, Miller, Lantz & Williams

908 Old National Tower

Evansville, Indiana 47708

Phone: (812) 423-4433

(812) 464-3915

*Member of the bar of the Supreme Court of the United States

and counsel upon whom service is to be made.

APPENDIX

APPENDIX A

18 U.S.C. §2511. Interception and disclosure of wire or

oral communications prohibited

(1) Except as otherwise specifically provided in this

chapter any person who ---

(a) willfully intercepts, endeavors to intercept, or

procures any other person to intercept or endeavor to

intercept, any wire or oral communication;

(b) willfully uses, endeavors to use, or procures

any other person to use or endeavor to use any electro-

nic, mechanical, or other device to intercept any oral

communication when ---

(i) such device is affixed to, or otherwise

transmits a signal through, a wire, cable, or other

like connection used in wire communication; or

(ii) such device transmits communications by

radio, or interferes with the transmission of such

communication; or

(iii)such person knows, or has reason to know,

that such device or any component thereof has

been sent through the mail or transported in inter-

state or foreign commerce; or

(iv)such use or endeavor to use (A) takes

place on the premises of any business or other

commercial establishment the operations of which

affect interstate or foreign commerce; or (B) ob-

tains or is for the purpose of obtaining information

relating to the operations of any business or other

commercial establishment the operations of which

affect interstate or foreign commerce; or

(v) such person acts in the District of Co-

lumbia, the Commonwealth of Puerto Rico, or

any territory or possession of the United States;

to any other person the contents of any wire or oral

communication, knowing or having reason to know that

the information was obtained through the interception

of a wire or oral communication in violation of this

subsection; or

(d) willfully uses, or endeavors to use, the con-

tents of any wire or oral communication, knowing or

having reason to know that the information was obtained

through the interception of a wire or oral communication

in violation of this subsection;

shall be fined not more than $10,000 or imprisoned not more

than five years, or both.

(2) (a) (i) It shall not be unlawful under this chapter

for an operator of a switchboard, or an officer, employee, or

agent of any communication common carrier, whose facilities

are used in the transmission of a wire communication, to

intercept, disclose, or use that communication in the normal

course of-his employment while engaged in any activity which is

a necessary incident to the rendition of his service or to the

protection of the rights or property of the carrier of such com-

munication: Provided, That said communication common

carriers shall not utilize service observing or random monitoring

except for mechanical or service quality control checks.

(ii) It shall not be unlawful under this chapter for an

officer, employee, or agent of any communication common

carrier to provide information, facilities, or technical assistance

to an investigative or law enforcement officer who, pursuant

to this chapter, is authorized to intercept a wire or oral com-

munication.

(b) It shall not be unlawful under this chapter for an

officer, employee, or agent of the Federal Communications

Commission, in the normal course of his employment and in

discharge of the monitoring responsibilities exercised by the

Commission in the enforcement of chapter 5 of title 47 of the

United States Code, to intercept a wire communication, or

oral communication transmitted by radio, or to disclose or

use the information thereby obtained.

person acting under color of law to intercept a wire or oral

communication, where such person is a party to the communi-

cation or one of the parties to the communication has given

prior consent to such interception.

(d) It shall not be unlawful under this chapter for a

person not acting under color of law to intercept a wire or oral

communication where such person is a party to the communi-

cation or where one of the parties to the communication

has given prior consent to such interception unless such com-

munication is intercepted for the purpose of committing any

criminal or tortious act in violation of the Constitution or

laws of the United States or of any State or for the purpose

of committing any other itijurious act.

(3) Nothing contained in this chapter or in section 605

of the Communications Act of 1934 (48 Stat. 1143;47 U.S.C.

605) shall limit the constitutional power of the President to

take such measures as he deems necessary to protect the Nation

against actual or potential attack or other hostile acts of a

foreign power, to obtain foreign intelligence information

deemed essential to the security of the United States, or to

protect national security information against foreign intelli-

gence activities. Nor shall anything contained in this chapter

be deemed to limit the constitutional power of the President

to take such measures as he deems necessary to protect the

United States against the overthrow of the Government by

force or other unlawful means, or against any other clear and

present danger to the structure or existence of the Government.

The contents of any wire or oral communication intercepted

by authority of the President in the exercise of the foregoing

powers may be received in evidence in any trial hearing, or

other proceeding only where such interception was reasonable,

and shall not be otherwise used or disclosed except as is neces-

sary to implement that power.

18 U.S.C. §2510. Definitions

As used in this chapter ---

(1) “wire communication” means any communication

made in whole or in part through the use of facilities for the

transmission of communications by the aid of wire, cable, or

other like connection between the point of origin and the

point of reception furnished or operated by any person engaged

as a common carrier in providing or operating such facilities

for the transmission of interstate or foreign communications;

(2) “oral communication” means any oral communi-

cation uttered by a person exhibiting an expectation that such

communication is not subject to interception under circum-

stances justifying such expectation;

(3) “State” means any State of the United States, the

District of Columbia, the Commonwealth of Puerto Rico,

and any territory or possession of the United States;

(4) “intercept” means the aural acquisition of the

contents of any wire or oral communication through the use

of any electronic, mechanical, or other device.

(5) “electronic, mechanical, or other device” means

any device or apparatus which can be used to intercept a

wire or oral communication other than ---

(a) any telephone or telegraph instrument, equip-

ment or facility, or any component thereof, (i) fur-

nished to the subscriber or user by a communications

common carrier in the ordinary course of its business

and being used by the subscriber or user in the ordi-

nary course of its business; or (ii) being used by a com-

munications common carrier in the ordinary course

of its busincss, or by an investigative or law enforce-

ment officer in the ordinary course of his duties;

(b) a hearing aid or similar device being used to

correct subnormal hearing to not better than normal;

(6) “person” means any employee, or agent of the

United States or any State or political subdivision thereof,

and any individual, partnership, association, joint stock com-

pany, trust, or corporation;

(7) “Investigative or law enforcement officer” means

any officer of the United States or of a State or political sub-

division thereof, who is empowered by law to conduct investi-

gations of or to make arrests for offenses enumerated in this

chapter, and any attorney authorized by law to prosecute or

participate in the prosecution of such offenses;

(8) “contents”, when used with respect to any wire

or oral communication, includes any information concerning —

the identity of the parties to such communication or the exist-

ence, substance, purport, or meaning of that communication;

(9) “Judge of competent jurisdiction” means ---

(a) a judge of a United States district court or a

United States court of appeals; and

(b) a judge of any court of general criminal juris-

diction of a State who is authorized by a statute of that

State to enter orders authorizing interceptions of wire

or oral communications;

(10) “communication common carrier” shall have the

same meaning which is given the term “common carrier” by

section 153(h) of title 47 of the United States Code; and

(11) “aggrieved person” means a person who was a party

to any intercepted wire or oral communication or a person

against whom the interception was directed.

18 U.S.C. §2515. Prohibition of use as evidence of

intercepted wire or oral communications

Whenever any wire or oral communication has been

intercepted, no part of the contents of such communication

and no evidence derived therefrom may be received in evidence

in any trial, hearing, or other proceeding in or before any court,

grand jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the United States,

a State, or a political subdivision thereof if the disclosure of

that information would be in violation of this chapter.

APPENDIX B

IN THE

COURT OF APPEALS OF INDIANA

FIRST DISTRICT

IN RE THE MARRIAGE OF

JUDITH GAYLE LOPP,

Respondent-Appellant,

)

po ) NO. 1-676-A-89

, )

JAMES D.. LOPP, JR., ‘

)

Petitioner-Appellee.

APPEAL FROM THE VANDERBURGH SUPERIOR COURT

The Honorable Lester Nixon, Special Judge

LYBROOK, J.

Respondent-appellant, Judith Gayle Lopp, appeals from

a judgment by the court determining that the marriage of James

Daniel Lopp, Jr. (Husband) and Judith Gayle Lopp (Wife) is

dissolved and that husband shall have custody of the one child

born from the marriage, James Daniel Lopp, III. Appellant-

wife presents the following issues for our review:

(1) Whether the court abused its discretion and

committed reversible error by admitting into evi-

dence a tape recording of conversations obtained

by a wiretap installed by nusband-appellee?

(2) Whether the court committed reversible error

by admitting into evidence a deposition taken by

appellee where appellant allegedly had no notice

nor was afforded the right to cross-examine defen-

dant?

(3) Whether the court erred in overruling appel-

lant’s motion to rescind the agreed provisional

order?

(4) Whether the court abused its discretion in

granting appellee-husband temporary and permanent

custody of the parties’ minor child?

(5) Whether the court abused its discretion in its

allegedly disproportionate division of the parties’

property anc denying appellant attorney fees and

cost for appeal?

The facts most relevant to'these issues reveal that appel-

lant-wife and appellee-husband, an attorney, were married on

January 9, 1971. The couple became involved in a domestic

crisis and they separated on September 22, 1975. They have

not cohabited since their separation. Wife and Husband had

one child, James Lopp, Ill. Wife had custody of her two

children from a previous marriage.

On the day of their separation, “ ptember 22, 1975,

Husband confronted Wife with tape recordings of telephone

conversations allegedly between Wife and various other parties.

Husband took physical custody of the couple’s child on this

date, and moved out of the residence of the parties.

The following day Wife went to her husband’s law

office. Her husband’s father, also an attorney, informed her

that if she did not consent to give her husband temporary

custody of their child until this conflict was resolved, he would

phone her former husband, inform him of the tapes and their

contents, and she could possibly lose custody of all three of

her children.

Thereafter she signed an agreed provisional order that

reads in part as follows:

“Comes now the Husband in the above matter and

files his petition for custody of parties’ minor child,

and comes now the Wife and the parties agree as

follows:

1. That the Husband shall have the care, custody

and control of the parties’ minor child, James Daniel

Lopp, III, provided, however, the Wife shall have

the temporary custody of said child at reasonable

times.

And the Court now approves the agreement of the

parties and the same is now so ORDERED.

I have read the above order and being advised of

my rights to an attorney, freely and voluntarily

consent and approve said order.

/s/ Judy Lopp

Wife”

On September 29, 1975, after Wife talked to an attorney,

a petition was filed which asked for temporary custody of the

parties’ child, adequate support, possession of the parties’

home, and an order restraining Husband from interfering

with her quiet enjoyment of the home.

On September 30, 1975, after a meeting between Wife,

Husband, his father and her attorney, the court approved the

following order and certified it into the record:

“Comes now the husband and by his attomey,

Glenn A. Grampp, and comes now the wife by her

attorney, David Kelley, and the wife’s petition

coming on for hearing, the parties agree as follows:

ee eee

1. That the husband shall have the care, custody

and control of the parties’ minor child, James

Daniel Lopp, III, provided however, the wife shall

have the privilege of seeing and visiting the parties’

minor child, one day a week from 9:00 a.m. to

5:00 p.m.

2. That the husband shall pay to the wife, the

sum of seventy-five dollars ($75.00) each week

for her support and maintenance pending this

matter, first payment to be made Friday of this

week, October 3, 1975 and a like sum each Friday

thereafter pending this matter.

3. That the wife shall have the privilege of occu-

pying the residence pending this matter and that

the husband shall pay the utilities as they become

due and payable, local telephone calls only.

4. That the wife is restrained from removing

any property from the residence.

5. That the husband is to have reasonable access

to the house for the purpose of inspection and the

wife is to provide the husband with a house key.

6. That the wife is to have the use and possession

of a certain Ford Station Wagon. ,

7. That the wife shall not incur or create any

debts chargeable to the husband including but

not limited to charge or credit accounts for her

Own person or any other person.

8. That the husband should pay the wife’s attor-

ney, David Kelley, the sum of three hundred dollars-~~

($300.00), one-half of said sum to be paid within

thirty (30) days from the date of this order and

the balance to be paid within sixty (60) days from

10a

the date of this order.

9. That this Court shall retain jurisdiction of

this cause, subject matter and persons herein.

This agreement is entered into freely and

voluntarily without coercion or duress and with

the wife being advised by her attco:ney, and having

full knowledge of all the facts.

And the court now approves the agreement

of the parties and the same is mow so ordered.”

The evidence at trial reveals that Husband attached a

self-activating tape recorder to his home phone on September

20, 1975, and thus recorded all telephone conversations.

The evidence at trial further reveals certain events that Judge

Lowdermilk of this court described in the case In Re The

Marriage of Judith Gayle (Forman) Lopp, Appellant and

James F. Forman, Appellee (1977), Ind. App.___., 362

N.E. 2d 492.

On December 22, 1975, the court issued its judgment

and findings for Husband on his Pétition for Dissolution and

denied Wife’s Cross-Petition for Dissolution of Marriage. The

court gave custody of James Lopp, III, to Husband. From

this determination, Wife appeals. ies

The first issue for our consideration is whether the

court abused its discretion and committed reversible error by

admitting into evidence a tape recording of conversations

obtained by a wiretap installed by Husband.

As a threshold issue we must determine if the wiretap

conducted by Husband comes within the ambit of the questioned

Federal Wiretap Statute. 18 U.S.C.A. $2511 in pertinent part

reads as follows:

lla

“$2511. Interception and disclosure of wire or oral

communications prohibited

(1) Except as otherwise specifically provided

in this chapter any person who ---

(a) willfully intercepts, endeavors to intercept,

or procures any other person to intercept or en-

deavor to intercept, any wire or oral communi-

cation;

(b) willfully uses, endeavors to use, or pro-

cures any other person to use or endeavor to use

any electronic, mechanical, or other device to inter-

cept any oral communication when ---

(i) such device is affixed to, or otherwise

transmits a signal through, a wire, cable, or

other like connection used in wire communi-

cation; or

close, to any other person the contents of any wire

or oral communication, knowing or having reason

to know that the information was obtained through

the interception of a wire or oral communication

in violation of this subsection; or

(d) willfully uses, or endeavors to use, the

contents of any wire or oral communication, know-

ing or having reason to know that the information

was obtained through the interception of a wire or

oral communication in violation of this subsection;

shall be fined not more than $10,000 or imprisoned

not more than five years, or both.”

While the above statute appears to provide only a criminal

sanction, the second tier of a three tier system of wiretap sanc-

tions is provided for in 18 U.S.C.A. §2515 which reads:

12a

“82515. Prohibition of use as evidence of inter-

cepted wire or oral communications

Whenever any wire or oral communication has

been intercepted, no part of the contents of such

communication and no evidence derived therefrom

may be received in evidence in any trial, hearing,

or other proceeding in or before any court, grand

jury, department, officer, agency, regulatory body,

legislative committee, or other authority of the

United States, a State, or a political subdivision

thereof if the disclosure of that information would

be in violation of this chapter.”

The third and final sanction is provided by 18 U.S.C.A.

§2520 which reads:

“§2520. Recovery of civil damages authorized

Any person whose wire or oral communication

is intercepted, disclosed, or used in violation of

this chapter shall (1) have a civil cause of action

against any person who intercepts, discloses, or

uses, or procures any other person to intercept,

disclose, or use such communications, and (2)

be entitled to recover from any such person ---

(a) actual damages but not less liquidated

damages computed at the rate/of $100 a day

for each day of violation or $1,000, whichever

is higher;

(b) punitive damages; and

gation costs reasonably incurred.

A good faith reliance on a court order or on the

provisions of section 2518 (7) of this chapter shall

l3a

constitute a complete defense to any civil or crimi-

nal action brought under this chapter.”

This appears to be a case of first impression in Indiana

and thus we may look to other jurisdictions for guidance in

applying these statutes. Husband admits that he placed the

wiretap, on his own marital home, but asserts that it was not

the intent of Congress to interfere with the domestic relations

between a man and his wife. He further asserts that no ex-

pectation of privacy exists between a husband and wife and

that the wiretap statute can only be applied where an expec-

_ tation of privacy exists. He cites as authority for his position

Simpson v, Simpson, 490 F. 2d 803 (Sth Cir. 1974).

Wife contends that the plain meaning of the language of

the statute should:control. She asserts that the language of 18

U.S.C.A. §2511 “Except as otherwise specifically provided in

this chapter any person who - *** ” (our emphasis) must be

interpreted to mean exactly what it says, We find support

for her position in the cases of Rickenbaker v. Rickenbaker

(1976), 290 N.C. 373, 226 S.E. 2d 347, and United States

v. Jones, 542 F. 2d 661 (6th Cir. 1976),

We find none of these cases to be controlling in this

matter. The Simpson court expressed doubts in regard to its

decision. In addition the Simpson case dealt basically with

the civil remedy provided by the wiretap statute. The Ricken-

baker case dealt exclusively with the exclusion of evidence in

a domestic dispute; however, the telephone which was tapped

was not actually in the marital héthe. The Jones case dealt

with criminal charges against a husband who was no longer

residing in the “marital home”’,

It is our opinion that Congress has enacte , three separate

and distinct remedies for courts to apply when confronted

with a wiretap violation. We are only faced with resolving an

application of the least severe of those remedies; namely,

the exclusion of evidence gathered from an illegal wiretap.

It ds our opinion that we must follow the plain meaning

of the words of the statute when resolving questions concerning

the application of the least coercive of the three tiers of remedies

provided by 18 U.S.C.A. 8 2510 et seq. It is an established rule

14a

of statutory construction that effect will be given to the plain

and unambiguous meaning of the words used. United States

v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed. 2d 575 (1961);

Bowen v. Review Bd. of Indiana Employment Sec. Div. (1977),

—___Ind. App. ___., 362 N.E. 2d 1178.

18 U.S.C.A. §2511 states “Except as otherwise specifi-

cally provided in this chapter any person who - ***” (Emphasis

added). We hold that the above words mean exactly what they

say; namely, a spouse may not secretly place wiretap equip-

ment on the telephone within the marital home and then claim

an exemption from the above statutes. Congress explicitly

and meticulously detailed the exemptions from the control

of the act, and no spousal immunity was listed among those

exceptions. We therefore hold that the act of Husband was

within the proscribed conduct of 18 U.S.C.A. §2510 ef seq.

for the ptitpose of applying the exclusionary rule found in

18 U.S.C.A. $2515.

Even if we chose to look behind the plain meaning of

the statute, our position finds support in both the legislative

history of the act and the case interpretations of the statute.

The Congress was plainly aware of the uses of electronic sur-

veillance in marital cases. See discussion of legislative history

in United States v. Jones, supra. Had the Congress chosen

to exclude domestic wiretaps from the ambit of wiretap statutes

it could have added an exception to the list of acts which were

not to be covered by the statutes. See 18 U.S.C.A. §2511 (2).

It appears that Congress intended the act as a protection

of the right to privacy. It is well established that the right to

privacy is designed to protect people, not places. Katz v.

United States (1967), 389 U.S. 347, 88 S. Ct. 507, 19 L.Ed.

2d 576. We can see no valid reason why the right to privacy

should’ be totally abrogated upon entry into a marriage. We

therefore hold that the least severe of the three possible sanc-

tions for illegal wiretaps should be applied in Indiana to exclude

the use’ of such evidence in any legal proceeding. See United

States v. Jones, supra, and Rickenbaker, supra. We hold that

a spouse may not obtain evidence through an illegal wiretap,

wield tha’ evidence as a sword in a domestic relation action,

and then hide behind that same marital status to justify the

15a

use of his illegally obtained evidence. The wiretap evidence

should not have been admitted at the trial. We specifically

do not decide any Liability which Husband may be under

from the impact of the remaining two remedies of the wiretap

act. This decision is further to be limited to its facts and

applied solely to the exclusion of evidence from proceedings

which are collateral to the wiretap itself.

Husband further asserts that even if the wiretap was

illegal, the admission of the tapes into evidence was harmless

error and within the discretion of the trial court. We must

disagree. The fruits of an illegal wiretap are not admissible,

Gelbard v. United States (1972), 408 U.S. 41, 92 S. Ct. 2357,

33 L. Ed. Zd 179; and the trial court has no discretion to

exercise in the admission of illegally obtained wiretap infor-

mation. United States v. Cihal 336 F. Supp. 261 (1972 W. D.

Penn.). We therefore find that the trial court committed

reversible error when the illegally obtained tape was admitted

into evidence.

Wife’s second allegation of error charges that reversible

error was committed when a deposition (reportedly taken

without notice to Wife) was admitted into evidence.

It is unquestioned that no notice was given to Wife prior

to Husband taking the deposition of her alleged paramour.

It is clear that lack of notice to all parties to an action is a

violation of Ind. Rules of Procedure, Trial Rule 30 (B) (1)

which in pertinent part reads:

“(1) A party desiring to take the deposition of any

person upon oral examination shall give reasonable

notice in writing to every other party to the action.

The notice shall state the time and place for taking

the deposition and the name and address of each

person to be examined, if known, and if the name

is not known, a general description sufficient to

identify him or the particular class or group to

which he belongs.” (Emphasis added).

It is clear that Husband violated the mandate of this rule and

that the deposition was not properly taken. This would be so

16a

regardless of any actual knowledge which the wife may have

possessed, as it is written notice which is required. Associated

Transport v. Riss & Co., 8 F.R.D. 99 (N.D. Ohio E.D., 1948),

see also 2 Harvey, Jndiana Practice 628, Trial Rule 30 (1970).

The uses of a deposition at time of trial or hearing sub-

sequent to the taking of a deposition are controlled by TR.

32 which reads:

*“(A) Use of depositions. At the trial or upon the

hearing of a motion or an interlocutory proceeding,

any part or all of a deposition, so far as admissible

under the rules of evidence applied as though the

witness were then present and testifying, may be

used against any party who was present or repre-

sented at the taking of the deposition, by or against

any party who had reasonable notice thereof or by

any party in whose favor it was given in accordance

with any one [1] of the following provisions:

(1) Any deposition may be used by any party for

the purpose of contradicting or impeaching the

testimony of deponent as a witness.

(3) The deposition of a witness, whether or not a

party, may be used by any party for any purpose

if the court finds:

(a) that the witness is dead; or

(b) that the witness is outside the state, unless

it appears that the absence of the witness

was procured by the party offering the deposi-

tion; or

testify because of age, sickness, infirmity,

or imprisonment; or

(d) that the party offering the deposition has

been unable to procure the attendance of the

17a

witness by subpoena; or

(e) upon application and notice, that such

exceptional cirumstances exist as to make it

desirable, in the interest of justice and with

due regard to the importance of presenting

the testimony of witnesses orally in open

court, to allow the deposition to be used; or

(f) upon agreement of the parties.”

Even if the deposition had been properly taken it would not

fit within any of the permissible uses of a deposition which

the Indiana Supreme Court enumerated by adopting TR.

32. The deposition of the alleged paramour of the wife is

not admissible into evidence.

It is Husband’s contention that the evidence contained

in the deposition is merely cumulative and therefore not worthy

of reversal. It is true that the vast majority of the paramour’s

testimony was confirmed by Wife’s testimony, and this court

will not reverse for admission or refusal of cumulative evidence,

Loudermilk v. Feld Truck Leasing Co. of Indiana (1976),

Ind, App. , 358 N.E. 2d 160. However, in light

of our resolution as to Issue I, we deem it instructive and

necessary to hold that the deposition was improperly taken

and was clearly not admissible into evidence.

Appellant’s third assertion of error contends that the

trial court erroneously refused to rescind the agreed provisional

order. Wife contends that the provisional order dated Septem-

ber 30, 1976, (which granted Husband temporary custody of

their minor child) was obtained under duress, undue influence,

fraud, threat of force and psychological and emotional intimi-

dation. It is Wife’s contention that husband exercised such

influence and coercion as to remove any free will which she

may have possessed which might have enabled her to resist

signing the documents.

While the evidence is strong that she may have been

influenced by factors which the husband brought to bear on

her free will, the evidence is not without conflict. The appel-

18a

lant is therefore requesting we reweigh the evidence and this

we will not do. Lake County Council v. Arredondo (1977),

ie , 363 N.E. 2d 218. We therefore find no

reversible error by the trial court in not rescinding the agreed

provisional order.

IV. & V.

The final two issues concern custody of the child of the

marriage and division of the marital assets. In light of our hold-

ing as to Issues I & II, we deem it unnecessary to discuss the

alleged errors presented by Issues IV & V.

Reversed.

ROBERTSON, C. J. and LOWDERMILK, J. CONCUR

19a

APPENDIX C

IN THE

SUPREME COURT OF INDIANA

IN RE THE MARRIAGE OF

JUDITH GAYLE LOPP,

piagundead haediatt,

and No. 778 S 145

)

JAMES D. LOPP, Jr., )

)

Petitioner-Appellee.

APPEAL FROM VANDERBURGH SUPERIOR COURT

The Honorable Lester Nixon, Special Judge

ON PETITION TO TRANSFER

PIVARNIK, J.

This case comes to us on a transfer petition from the

Court of Appeals, First District. The Vanderburgh Superior

Court entered a judgment, on December 22, 1975, dissolving

the marriage of the parties, husband James Lopp Jr. and wife

Judith Lopp. At the same time, the trial court ordered a

division of the parties’ property and awarded the husband

permanent custody of their minor child, James Lopp III. On

appeal, the judgment of the trial court was reversed. In re

Marriage of Lopp, (1977) Ind. App., 370 N.E. 24 977. Husband

James Lopp Jr. petitions this court to transfer this case and

to set aside the judgment of the Court of Appeals.

20a

The principal question for our review is whether the

trial court’s admission into evidence of tape recordings of

wiretapped telephone conversations mandates reversal of this

case. An examination of this question requires a close look

at the sequence and context of events, surrounding the ad-

mission of these tapes, at the trial court.

The husband, James Lopp Jr., an attorney, and the

wife, Judith Lopp, were married on January 9, 1971. They

had one child, James Lopp III. Also, Mrs. Lopp had custody

of her two children from a previous marriage.

Mr. Lopp subsequently became suspicious of his wife’s

activities. On September 20, 1975, Mr. Lopp attached a self-

activating tape recorder to his home phone, without the know-

ledge of his wife. This device recorded all telephone con-

versations, and the tape recordings acquired in this manner

apparently confirmed Mr. Lopp’s suspicions that his wife

was seeing another man.

On September 22, 1975, the couple became involved

in a domestic crisis and separated. On this date husband James

Lopp confronted his wife Judith with tape recordings of tele-

phone conversations allegedly between her and various other

parties. Mr. Lopp took physical custody of their son, James

Lopp III, on this date, and moved out of the marital home.

On September 23, 1975, Judith Lopp went to her hus-

band’s law office. Her father-in-law, James Lopp Sr., also an

attorney, informed her that if she did not consent to give her

husband temporary custody of their son James until this

conflict was resolved, he would phone her former husband,

inform him of the tapes and their contents, and she could

possibly lose custody of all three of her children. Judith

then signed an agreed provisional order which stated, in rele-

vant part:

“Comes now the Husband in the above matter and files

his petition for custody of parties’ minor child, and

comes now the wife and the parties agree as follows:

1. That the husband shall have the care, custody and

control of the parties’ minor child, James Daniel Lopp,

2la

Ill, provided, however, the Wife shall have temporary

custody of said child at reasonable times.

And the Court now approves the agreement of the

parties and the same is now so ORDERED.

I have read the above order and being advised of my

rights to an attomey, freely and voluntarily consent

and approve said order.

/S/ Judy Lopp

Wife”

On this same date, husband James Lopp Jr. filed both a Petition

for Dissolution of Marriage, and a Motion for Temporary

Custody of Parties’ Minor Child. This motion for temporary

custody, as quoted above and signed by Judith Lopp, was

approved and ordered by the trial court. |

On September 29, 1975, after Judith Lopp talked to an

attorney, she filed a Petition for Relief which asked for tem-

porary custody of the parties’ child, adequate support, posses-

sion of the parties’ home, and an order restraining Mr. Lopp

from interfering with her quiet enjoyment of the home. This

petition also alleged that Mrs. Lopp had been coerced into

agreeing that her husband should have custody of their child.

On September 30, 1975, after a meeting between wife,

husband, his father, and her attomey, the trial court approved

the substance of the September 23 agreement between the |

couple, along with other provisions. The pertinent part of

this court-approved agreement, as ordered and certified into

the record, was as follows:

“Comes now the hustand by his attorney, Glenn A.

Grampp, and comes now ‘the wife by her attorney,

David Kelley, and the wife’s petition coming on for

hearing, the parties agree as follows:

22a

1. That the husband shall have the care, custody and

control of the parties’ minor child, James Daniel Lopp,

III, provided however, the wife shall have the privilege

of seeing and visiting»the parties’ minor child, one day

a week from 9:00 A.M. to 5:00 P.M.

This agreement is entered into freely and volun-

tarily without coercion or duress and with the wife being

advised by her attorney, and having full knowledge of

all the facts.

And the court now approves the agreement of

the parties and the same is now so ordered.”

On October 3, 1975, Judith Lopp filed a Petition for

Rehearing with the trial court, in which she asked the court

for a new hearing on the issue of her son's custody. Alleging

that the two previous court-approved custody agreements

were not voluntarily agreed to by her, Mrs. Lopp’s petition

stated that:

“{B]oth of her agreements herein were wrung from

her by threats and coercion in that she was threatened

with publication of several of her private phone calls

which were recorded without her knowledge by her

husband, she was threatened with total loss of her said

child, her former husband, James Forman, was sub-

poened to the hearing and she was threatened with the

influence of her husband on transferring custody of

her two daughters to said James Forman. Affiant further

says that she has been subjected to the Lopp infallibility

in the field of law and intimidated by the assertion of

her husband and his father of their influence over the

courts of this area. Affiant further says that she was

advised by her lawyer, David O. Kelley, not to agree but

at the conference she agreed to the custody in her hus-

band which was held in her husband’s office where she

feared for her children and their future as a family with

23a

her because of the coercion, intimidation and threats

aforesaid.”’

Subsequent to this petition, the regular trial court judge relin-

quished jurisdiction and a special judge was named. Further

motions and petitions were filed by the parties, including a

motion by Mr. Lopp to dismiss his wife’s Petition for Re-

hearing. The trial court took the entire matter under advise-

ment.

On November 25, 1975, the trial court considered Mrs.

Lopp’s Petition for Rehearing, and overruled her husband's

motion to dismiss it. A hearing was then held, specifically

on the issue of the alleged fraud and coercion in the procure-

ment of the provisional custody orders. During cross-examina-

tion of Mrs. Lopp, her husband's attorney asked that the tapes

be admitted. The wife’s attorney, Mr. Grove, objected on the

basis of 18 U.S.C. 82515 (1970). The trial judge stated that

he had opposing briefs by the parties, including conflicting

federal circuit opinions on the question of the admissibility

of wiretaps in inarital proceedings, and stated, “I’m prepared

to overrule the objections to the tapes. If I’m wrong, I'll

be reversed. If I rule otherwise and I’m wrong, I'd be reversed,

so my best judgment is that my chances are better.” There

were further objections by the wife’s attorney, relating to the

sclosure of the names of third parties that might be involved

by admitting the tapes. The court then stated, “Now, I’m

just down here to try this case. Everyone in this courtroom

knows who you're talking about but myself, and I’m the one

who has to decide it.” _Husband’s attommey then cross-examined

Mrs. Lopp about the contents of the tape. Her attorney made

foundation objections, saying that he had not reviewed the

tapes, and questioned their accuracy. The following colloquy

then took place between the court and wife’s attorney:

THE COURT: Well, now, let me see where I am on this.

She’s testified that one of the reasons that she

signed this was that she was afraid that the tapes

would be made available to a former husband or

something. Is that right?

24a

MR. GROVE: That’s correct. It was her testimony, yes.

THE COURT: And they’re questioning whether or not

playing those tapes was sufficient to intimidate

her to get her to do it. Now, how am I going to

know unless I hear the tapes: If that’s going to

be part of your evidence, then do I take your

word for it, or am I supposed to hear the tapes?

What’s your position on that?

MR. GROVE: No, may I say to the Court that we have

no objection if the Court does hear the tapes

under any circumstances, under the appropriate

rules, as a matter of fact, either by way of incamera

proceedings or anything else. I’m not sure what

the state of the law is. Not that I’m questioning

the Court’s ruling. We don’t have any objection

if the Court listens to the tapes, either in in camera

proceedings or anything else, to help you decide.

That is not the basis. I object to the format by

which they are attempting to cross-examine her

as to the subject matter. And because of the

many questions in my mind, if the Court wishes,

out of the presence of both attorneys and parties,

to listen to the tapes, | have no objection what-

soever. Except, I cannot verify .. . I can’t say

and I don’t know that my client can say that they

have not been tampered with in some way, there’s

no evidence.

THE COURT: Of course, I certainly wouldn’t listen to

them without the presence of both attorneys on

either side. That’s part of it. I personally would

rather not listen to them, if I had a preference

on it.

25a

MR. GROVE: ... [We] have no objection as long as

there are appropriate orders to protect the parties.

The trial court then impounded the tapes, at the conclusion

of this hearing, and took the Petition for Rehearing under

advisement along with the parties’ briefs on the subject. _

On December 3, 1975, after listening to the tapes, the

trial court overruled Mrs. Lopp’s Petition for Rehearing and

motion to overrule the provisional orders of September 23

and September 30.

The final hearing on this case was opened before the

trial judge on December 10, 1975. The court ordered all of

the testimony and evidence from the prior hearing, which

was already before the court, to be incorporated into the

present hearing. During the testimony, the husband’s attor-

ney offered the tapes into evidence. The wife’s attorney

objected on the grounds previously raised. The trial court

then admitted the tapes, marked as Petitioner’s Exhibit #8,

into evidence. This ruling was made on the basis of the court’s

two previous rulings of admissibility of the tapes, both at the

former hearing and the ruling on the incorporation of all the

former hearing evidence in the present hearing. The tapes

were never read or transcribed into the record. Nor did the

trial court hear the tapes again. Rather, they were admitted

because the judge had already heard them, and so that they

could be marked for reference purposes during witness testi-

mony. The final hearing then proceeded, at which an ex-

haustive amount of evidence was admitted concerning the

relationship of these parties, their finances and property,

and their fitness for custody, including evidence of events

as described in Jn re Marriage of (Forman) Lopp, (1977) Ind.

App., 362 N.E. 2d 492, a case dealing with a custody modifi-

cation petition from Mrs. Lopp’s former divorce decree.

On December 22, 1975, the trial court issued its judg-

ment and findings, dissolving the marriage of the parties and

dividing their assets. Custody of the parties’ minor son, James

Lopp III, was granted to the husband, with provisions for

visitation granted to Mrs. Lopp.

A Motion to Correct Errors was filed by Mrs. Lopp on

26a

February 20, 1976. Specifications nos. 6 and 9 of this motion

alleged error in the admission of the tape recordings. The

trial court overruled this motion on March 3, 1976, which

judgment stated as follows:

“This cause comes before the Court on the Motion

to Correct errors of the Respondent and Cross-Petitioner

filed on February 20, 1976, and now the Court having

considered said motion,

“FINDS that the error, if any, in the admission

into evidence of the matters complained of in specifi-

cations 6 and 9 of the Respondent and Cross-Petitioner’s

said motion constituted at most harmless error under

the provisions of Trial Rule 61 of the Indiana Rules of

Civil Procedure inasmuch as the evidence was merely

cumulative and did not affect the substantial rights of

the parties.

“And now the Court having reviewed the evidence

concludes that the decision and judgment of the Court

on all issues is sustained by substantial evidence even

to the exclusion of the evidence complained of in speci-

fications 6 and 9 of Respondent and Cross-Petitioner’s

Motion to Correct Errors, and the Court hereby reaffirms

the judgment entered in this cause on the 22nd day of

December, 1975.

“IT IS THEREFORE, ordered, adjudged and

decreed by the Court that the Respondent and Cross-

Petitioner’s Motion to Correct Errors is overruled.”

In the Court of Appeals opinion in this case, it was held

that the trial court abused its discretion and committed rever-

sible error by its admission into evidence of the tape recordings

of the wife’s telephone conversations. It was held specifically

that the husband’s conduct in placing the wiretap was pro-

scribed conduct within the meaning of federal wiretap laws,

18 U.S.C. $2510 et. seg. (1970), and that the exclusionary

rule of such statute thus applied. Lopp, supra, 370 N.E. 2d

at 981. As against the husband’s argument that the admission

was harmless error, the Court of Appeals stated that the fruits

27a

of an illegal search are not admissible and that the trial court

has no discretion to exercise in the admission of illegally ob-

tained wiretap information. /d. at 982. The Court of Appeals

also discussed the right to privacy, and as another rationale

for its decision stated:

“We hold that a spouse may not obtain evidence through

an illegal wiretap, wield that evidence as a sword in a

domestic relation action, and then hide behind that

same marital status to justify the use of his illegally

obtained evidence.”

Id. at 981. Thus, the opinion seems to have been based not

only on the court’s reading of the federal statutes, but also

on public policy grounds. The case was then reversed and

remanded for new determinations of the custody and property

settlement issues, which issues were raised but not decided

by the Court of Appeals in view of its disposition of the wire-

tap issue. Other evidentiary issues in this case were decided

by the Court of Appeals, however, including a specific finding

against the wife on her claim that the trial court’s provisional

orders were obtained under duress and fraud. The Court of

Appeals found that the evidence was sufficient to sustain the

trial court on this point. Jd. at 983.

The husband's transfer petition to this court alleges

several errors in the above opinion of the Court of Appeals.

Chiefly, he argues that the federal wiretap statutes are not

applicable to this case, and also reasserts his harmless error and

cumulative evidence arguments. Contrary to the Court of

Appeals’ allusions to the wife’s right of privacy, he argues that

the Court of Appeals decision violates his right of privacy in

his own home. He also, in his brief, says that the Court of ’

Appeals could not have ruled on the cumulativeness of the

tapes unless they “gazed into a crystal ball,” since they did

not say that they heard the tapes. Against this argument,

the wife argues here that it is “beyond the realm of possibility”

that the trial court was not prejudiced by listening to the

tapes. We are thus faced with more than a few incredible

arguments and novel constitutional questions, concerning the

28a

construction of a federal statute, federalism, and rights of

privacy, the upshot of which has been attempts, on both sides

since the beginning of this case, to goad a trial court judge

into error in a dissolution proceeding by reference to a mysteri-

ous evidentiary quantity about which the law is totally un-

certain.

While we do not endorse all the claims of the husband,

or his conduct, we grant transfer and reverse the opinion of

the Court of Appeals, insofar as it held that the trial court’s

action mandates reversal of this case. Our holding is strictly

limited to the particular facts and circumstances surrounding

the admissibility of these tapes in this trial, as outlined above

and discussed subsequently. In es#nce, we do not see how

any more evidentiary hearings can further either justice to

these parties or the best interest of their child, in view of the

substantial evidence already heard. We hold that the trial

judge ruled prudently concerning the tapes, and acceed to his

judgment on disputed questions of fact. Also, we believe that

the Court of Appeals, in relation to these facts and circum-

stances, fashioned an evidentiary policy which actually supports

the trial judge’s conduct.

The center of the legal controversy here is the applica-

bility of the federa! wiretap statutes, 18 U.S.C. §2510 ef. seq.

(1970) to the present dissolution of marriage proceeding.

Section 2511 of the statute is a criminal sanction against any

person who wilfully intercepts, uses, or discloses illegal wire-

taps and illegal oral communication interceptions. Section

2515 of the statute, which is the part chiefly in issue here, is

an exclusionary rule relating to such evidence which states as

follows:

“Whenever any wire or oral communication has

been intercepted, no part of the contents of such com-

munication and no evidence derived therefrom may be

received in evidence in any trial, hearing, or other pro-

ceeding in or before any court, grand jury, department,

officer, agency, regulatory body, legislative committee,

or other authority of the United States, a State, or a

political subdivision thereof if the disclosure of that

29a

information would be in violation of this chapter.”

Another part of the statute, §2520, provides for recovery of

civil damages by those who have been illegally wiretapped

against those who have so violated their privacy. The legis-

lative history of these statutes states that Congressional power

in this area is founded on the power to regulate interstate

commerce, and that the sanctions in the act are designed to

protect privacy. See 1968 U.S. Code Cong. & Admin. News

2177-97. This history also states that the exclusionary rule

of $2515 was meant to apply in both federal and state pro-

ceedings, and is not meant to be limited to criminal proceed-

ings. Jd. at 2185. There have been no comparable statutes

on wiretap activities passed by the legislature of this state.

Several courts have considered whether or not, as a

matter of statutory construction and legislative intent, these

federal statutes apply to electronic surveillance between married

persons. The most celebrated cases on this question are Simp-

son v, Simpson, (5th Cir. 1974) 490 F. 2d 803, cert. denied,

(1974) 419 U.S. 897, 95 S. Ct. 176, 42 L. Ed. 2d 141, and

United States v. Jones, (6th Cir. 1976) 542 F. 2d 661. Simp-

son was a suit for civil damages, by a wife who was wiretapped

by her husband, which held that these statutes did not apply

to interspousal wiretapping. Jones reached the opposite con-

clusion, in a federal criminal prosecution against a husband

who intercepted telephone communications of his wife, from

whom he was then separated. The United States Supreme

Court has not spoken directly to this question, and the division

of opinion is reflected in other federal cases. See Anonynwus

v. Anonymous, (2d Cir. 1977) 558 F. 2d 677, aff'g London

v. London, (S.D.N.Y. 1976) 420 F. Supp. 944 (dismissing a

civil suit by wife against husband who had wiretapped her);

United States v. Schrimsher, (Sth Cir. 1974) 493 F. 2d 848

(upholding a criminal prosecution of a man who wiretapped

his former lover); Remington v. Remington, (E.D. Pa. 1975)

393 F. Supp. 898 (denying motion to dismiss civil suit brought

by husband who had been wiretapped by his wife and others).

~ On the precise question of the applicability of §2515,

the exclusionary rule of the federal wiretap statutes, there is

30a

a similar dearth of authority and division of opinion. In Beaber

v. Beaber, (C.P. Stark Co. 1974) 41 Ohio Misc. 95, 322 N.E.

2d 910, a trial judge held that neither the federal wiretap

statutes nor the right of privacy under the United States Consti-

tution prevented him from listening to a husband’s wiretapping

of a wife’s telephone conversations in the marital home. The

court reasoned, in this divorce proceeding wherein child custo-

dy was in issue, that he was only listening to the tapes for im-

peachment purposes. On the basis of other evidence before

him, the judge thought that the husband was in an “‘indefen-

sible position” without the tapes, since the husband’s testimony

alone seemed “almost unbelievable” until the tapes were

admitted, which tapes vindicated him and “completely obli-

terated” the otherwise believable testimony of his wife. /d.,

41 Ohio Misc. at 97, 103, 322 N.E. 2d at 912, 915. The trial

judge’s opinion was affirmed in an unpublished opinion by

the Ohio Court of Appeals, Beaber v. Beaber, No. 4187 (Ohio

App., 5th Dist., Aug. 4, 1975). The Ohio Court of appeals

also saw the question as one of admitting the wiretaps solely

for purposes of impeachment, upon the issue of witness credi-

bility relative to alleged perjury in fraudulently obtaining a

court order, rather than as a question of using such wiretaps

as substantive proof in the case, absent perjury. /d., slip op.

at 14-15. The court concluded, after recognizing the federal

line of authority that otherwise unconstitutional evidence

can be used for impeachment purposes, that:

“The law has justice not injustice as its purpose. Justice

not injustice is the end sought by the United States

Constitution, the Constitution of the State of Ohio, and

by the laws of the United States, of the State of Ohio,

and the Courts. Although under some other circum-

stances the tapes might be constitutionally inadmissible

or their admission might be prohibited by statute, under

the facts of the instant case there can be no justification

for permitting the plaintiff to turn the method by which

the tapes were obtained to her own advantage, and thus

provide herself with a shield against contradiction of her

own untruths.”

3la

Id., slip op. at 17-18. Although the Beaber courts discussed

issues similar to the question of the applicability of 18 U.S.C.

§2515, unfortunately, that exclusionary rule section of the

federal wiretap statute was not cited or discussed in their

opinions, Section 2515 was cited and discussed briefly by

the Florida courts in Markham vy. Markham, (Fla. App. 1972)

265 So. 2d 59, aff'd, (Fla. 1973) 272 So. 2d 813. This case

was a dissolution of marriage action, in which the husband

offered wiretaps of telephone conversations of his wife on

the issue of temporary custody of the children. The trial

court did not think that the federal statutes necessitated an

exclusion of this evidence, but this decision was held reversible

at both levels of state appellate review. It was agreed that the

general right of privacy of persons was a matter of state, not

federal, law. Jd., (Fla. App.) 265 So. 2d at 60-61, However,

it was found that both the Florida Constitution and the appli-

cable statutes of Florida prohibited the use of such evidence

as a matter of state law. Jd., (Fla. App.) 265 So. 2d at 61-62;

(Fla.) 272 So. 2d at 814. The same result was reached in the

North Carolina case of Rickenbaker v. Rickenbaker, (1976)

28 N.E; App. 644, 222 S.E. 2d 463, aff'd, (1976) 290 N.C.

373, 226 S.E. 2d 347. In this case, a husband who was no

longer living in the marital home wiretapped his wife, who

was still living there, and attempted to admit such evidence

in a divorce action where child custody was in issue. The

state appellate courts both construed §2515, holding that it

clearly prohibited the use of wiretapping in evidence, in the

case at hand, and that this federal law was binding on state

judges. Jd,, 28 N.C. App. at 647-48, 222 S.E. 2d at 465; 290

N.C, at 381-82, 226 S.E. 2d at 352-53. In our own state,

the first time that §2515 has ever come into question is in

the present case, and the only opinion on it is that of the

Indiana Court of Appeals here under review.

A review of all the above authority leads to two con-

clusions pertinent to the case before us. First,

has not yet been decided by any o

court. That question, as we see it, is whether or not wiretap

telephone conversations are admissible in a marital

wherein it is claimed that they have been used to coerce

32a

blackmail a party into a court-approved agreement, thereby

also defrauding the court. This is thus a different question,

of statutory interpretation and legislative intent, from the

more general question of whether §2515 can be construed

to mandate exclusion of wiretaps as substantive proof on the

merits of the controversy. Seen in this light, the present

question is most analogous to that faced by the Ohio courts

in Beaber, supra, wherein it was only decided whether the

tapes could be used for impeachment purposes as to alleged

perjury in attempting to obtain 4 court order. Our second

conclusion, drawn from the authorities, is that questions of

federalism are necessarily involved in any application of $2515

to marital actions. This is because both the clear language and

legislative history of the statute arguably foreclose any excep-

tions to its rule, as a matter of statutory interpretation. As

phrased in Anonymous, supra, 558 F. 2d at 677, “The issue

becomes at what point interspousal wiretaps leave the province

of mere marital disputes, a matter left to the states, and rise

to the level of criminal conduct prescribed by the federal wire-

tap statutes.” The issue was also seen in this light by Circuit

Judge Bell, now the United States Attorney General, in Simp-

son, supra, 490 F. 2d at 805, though he purportedly resolved

this underlying question of federalism as a matter of statutory

interpretation.

On the question of statutory interpretation before

this court, we find that §2515 would lead to an illogical and

absurd result if read to mandate reversal of the present case.

The record is clear that the tapes were listened to by the trial

court for the purpose of deciding the question of fraud and

coercion in the procurement of the provisional custody orders

of September 23 and September 30. This question of fraud

and coercion was brought forward by Mrs. Lopp, after she

had signed the orders, and the first hearing in this case was

specifically had on that issue. Thus, at the time the trial court

had to decide the fraud question, he had two contradictory

representations of Mrs. Lopp herself: her signature on the

provisional custody agreement, with the statement there that

she had advisediy and freely and voluntarily entered into it,

and her present claim and testimony that her will had been

33a

overborne by fraud and coercion tantamount to blackmail.

The claim of fraud and coercion was based on the existence

of the tapes of Mrs. Lopp’s phone conversations, which evi-

dence the trial court correctly observed that he had only the

representations of the attorneys about. Mrs. Lopp did not

object to the trial court hearing the tapes for this purpose. The

trial court then heard the tapes, which were never transcribed

into the record. We doubt that Mrs. Lopp would still be ob-

jecting to the admission of the tapes, had the trial court in

fact found that their subject matter was such as could have

overborne her will.

The Court of Appeals has stated in this case that a

spouse should not be able to wield illegal wiretaps ‘‘as a sword

in a domestic relation action,” and then be able to hide behind

the marital status that he has wielded the sword against to

justify the admission of such evidence. Lopp, supra, 370 N.E.

2d at 981. However, if this statement is either correct as an

interpretation of the federal wiretap statutes, or laudatory

as an expression of state judicial policy, it actually supports the

action of the trial judge in this case. He specifically heard the

tapes because of allegations that the husband had improperly

wielded this evidence in order to gain the wife’s assent to

custody orders. The trial judge was thus actually trying to

prevent the kind of overreaching about which the Court of

Appeals is concerned. An exclusionary rule, which would

prevent the hearing of the tapes even for this purpose, would

not necessarily prevent the use of wiretapped private phone

conversations for blackmail. Even if the tapes are inadmissible

as evidence in a courtroom, they could be used in other ways

that might coerce a person into signing a court agreement.

In the present case, for instance, Mrs. Lopp was purportedly

afraid that her former husband would have access to the tapes.

If the tapes were thus inadmissible for purposes of she ing

the subtance of such fraud and coercion, the person they

were used against would be left without anything, other than

his own testimony, with which to evidence the coercion before

the court. It is unfortunate that electronic surveillance equip-

ment can be used for such purposes generally in society, but as

long as this equipment is in existence a blanket evidentiary

34a

exclusionary rule cannot prevent all possible abuse. On the

other hand, if the type of blackmail alleged here is to be guarded

against when court orders relating to custody are at stake, the

tapes must be admissible to evidence such fraud. Otherwise,

the trial judge would have only the representations of the

parties and their attorneys on which to base a decision. In

such event, a spouse could claim coercion and defraud the

judge by merely wielding harmless, or even blank tapes, which

the judge could not hear. It is a well established principle of

statutory interpretation that if a statute is open to two inter-

pretations, the presumption is that the legislature intended

the more reasonable of the two, for the legislature cannot be |

presumed to have expected that a statute be applied in an

illogical and absurd manner. See, e.g., Kerlin’s Lessee v. Bull,

(1786) 1 U.S. (1 Dall.) 175, 1 L.Ed. 88; Pryor v. State, (1973)

260 Ind, 408, 296 N.E. 2d 125; In re Adoption of Jackson,

(1972) 257 Ind. 588, 277 N.E. 2d 162. Even if we ascribe to

the national Congress, in the enactment of §2515 and other

federal wiretap statutes, a legislative purpose of preventing

wiretap abuse in domestic relations matters, see Jones, supra,

542 F. 2d at 668-71, that purpose is in fact hindered by the

application of $2515 to mandate reversal of this case. Thus

in view of all the facts and circumstances herein, we hold the _

action of the trial judge in this case to be proper, and not

reversible error. We believe that the other interpretation

urged by Mrs. Lopp on appeal, leads to an illogical and absurd

nails which we presume that the national Congress did not

intend.

Underlying the decision we reach is a consideration of

due process. Certainly, it is essential in custody determination

that agreements between parties before the court, given the

trial judge’s approval and entered as his orders, be freely agreed

to as expressions of the parties’ intent, and not be the product

of fraud and blackmail. Our trial rules provide for relief from

court orders and judgments on the basis of “fraud, misreprese-

tation, or other misconduct of an adverse party.” Ind. R. Tr.

P. 60 (B) (3). As stated by the Ohio Court of. Appeals, the

end sought by both state and federal constitution’ and statutes

is justice, not injustice. Beaber, (Ohio App.), supra, slip op. at

35a

17-18. See also U.S. Const. amend. V, amend. XIV: Ind.

Const. art. 1, §12. Further, the type of order involved here,

of child custody, is a special concern of the trial judge apart

from the interests, selfish or otherwise, of either the husband

cr wife in a dissolution proceeding. The trial judge has the

responsibility to assure that such orders are entered in accor-

dance with the best interests of the child. Ind. Code § 31-1-

11.5-21 (Burns Supp. 1975); Schwartz v. Schwartz, (1976)

Ind. App., 351 N.E. 2d 900,901. It cannot be seriously claimed

that a fraudulently procured custody order, if such were in

fact the case, furthers either the best interest of the child or

an orderly process for a determination of what that interest

is. We thus, in the present situation, feel that to the extent

§2515 can be read to the contrary, it would be an unconstitu-

tional impairment of an integral and essential function of state

court judges, the entering of efficacious orders, free of fraud,

which function here is related to a service traditionally per-

formed by state judges and expected of them by their legis-

latures and citizens, the providing for the best interests of

the children in domestic relations disputes. See National

League of Cities v. Usery, (1976) 426 U.S. 833, 96 S. Ct. 2465,

49 L. Ed. 2d 245, construing U. S. Const. amend X. We serious-

ly doubt, however that the national Congress intended such

an interpretation and application of $2515. Since another

part of the federal wiretap statute, §2520, provides for civil

damages for persons aggrieved by electronic surveillance, the

federal courts in such a case would presumably be compelled

to listen to the wiretaps, to prove their existence, as an essential

element of the case. That function is directly analogous to the

purpose for which the trial judge listened to the tapes in this

case.

We also do not agree that the trial judge’s later admission

of the tapes at the final hearing mandates reversal of this case.

At the time of the final hearing, the tapes had already been

admitted for a proper purpose, and for a purpose which Mrs.

Lopp did not object to. The trial judge had already listened

to them, and it was not suggested by anyone that he disqualify

himself from the case for this reason. It is clear that the tapes

were only readmitted as part of a general order to incorporate

36a

all evidence already before the court into the final hearing, and

for purposes of marking them as an exhibit in the case. The

trial judge did not listen to the tapes again, nor were they read

or transcribed into the record. Finally, the trial judge made

two specific findings of fact on this question: that the tapes

were merely cumulative and did not affect the substantial

rights of the parties, thus constituting harmless error under

Ind. R. Tr. P. 61, and that the final judgment on all issues

was sustained by substantial evidence even to the exclusion of

the tapes. In addition to these findings, the trial judge had

previously found against the wife on her claim of fraud and

coercion, toward which claim the substance of the tapes was

supposedly probative. The Court of Appeals in this case has

specifically affirmed the trial court on this finding of fact.

Lopp, supra, 370 N.E. 2d at 983. This holding of the Court

of Appeals is consistent with the principle that in reviewing

actions of a trial court, we neither weigh the evidence nor

determine the credibility of witnesses. B & T Distributions,

Inc. v. Riehle, (1977) Ind. , 366 N.E. 2d 178, 180;

Lake County Council v. Arredondo, (1977) Ind.

363 N.E. 2d 218, 219.

Thus, we do not here decide t' question of the appli-

cability of 18 U.S.C. §2515 (1970), .o the use of wiretap evi-

dence on the substantive merits of the child custody question,

because it is apparent that this question is not properly before

us in this case. In the final analysis, this court must be the

judge of its constitutional jurisdiction, and this jurisdiction,

as embodied in the Constitution of Indiana by the people

themselves acting in a sovereign capacity, is entitled to strict

construction. Warren v. Indiana Telephone Co., (1940) 217

Ind. 93, 26 N.E. 2d 399, construing Ind. Const. art. 7. What- -

ever the resolution of the question concerning the general

scope of §2515, we do note that the harmless error doctrine

has been applied to the admission of illegal wiretap evidence

in the case of United States v. Quintana, (7th Cir. 1975) 508

F. 2d 867. There, the court stated that wiretaps, in violation

of the same federal statutory scheme that is in issue in this

action, were ‘‘merely cumulative to the great weight of other

evidence” and “did not affect the substantial rights of the

37a

parties.” Jd., at 873. Their admission was thus harmless

beyond a reasonable doubt under the concept of Chapman y.

California, (1967) 386 U.S. 18, 87 S. Ct. 824, 17 L.Ed. 2d

705. The same assessment was made by the trial judge in

this proceeding, and we decline to engage in any presumptions

concerning that judge’s bias or prejudice based solely on the

fact that he heard the tapes. The harm arising from evidentiary

error is lessened substantially when the trial is by the court

sitting without a jury. See generally Shira v. State, (1918)

187 Ind. 441, 119 N.E. 833; King v. State, (1973) 155 Ind.

App. 361, 292 N.E. 2d 843. Without a transcription of these

tapes before us to demonstrate their supposed prejudice, the

presumptions in favor of the trial court’s judgment apply in

full force, and we must agree, in light of all the circumstances

of this case, that the error, if any, in his hearing of the tapes

was harmless beyond a reasonable doubt.

Four other questions need to be discussed here. Because

of its disposition of this case on the issue of wiretap admission,

the Court of Appeals did not reach two other arguments of

Mrs. Lopp, alleging abuse of discretion in both the trial court’s

grant of permanent custody and its division of marital property.

To a great extent, these arguments depend on the assumption

that the trial court was unduly prejudiced by listening to the

tapes, which assumption we have rejected. The remainder of

these arguments, essentially, are a reargument of the con-

flicting evidence in this case and the relative weight to be

accorded it. We have reviewed these arguments, and find that

the evidence, while conflicting, is of enough substance to

support the judgment of the trial court on the questions of

custody and property division. We also agree with the Court

of Appeals’ disposition of the two other evidentiary issues in

this case: that the admission of a deposition of wife’s paramour

was erroneous, but harmless since the deposition was merely

cumulative, and; that there is sufficient evidence to support

the trial court’s finding on the issue of the wife’s voluntary

assent. to the provisional custody orders. Lopp, supra, 370

N.E. 2d at 982-83. We fail to see how any further evidentiary

hearings in this matter could lead to other results, or be in

the best interest of the parties’ minor child.

38a

Transfer is granted, and the decision of the Court of

Appeals in this case is vacated. The judgment of the trial

court is affirmed in all respects.

GIVAN, C.J., HUNTER, PRENTICE, JJ. CONCUR.

DeBRULER, J. DISSENTS.

39a

APPENDIX D

IN THE

SUPREME COURT OF INDIANA

IN RE THE MARRIAGE OF )

)

JUDITH GAYLE LOPP, . )

Respondent-Appellant )

)

and ) NO. 7788 145

)

JAMES D. LOPP, JR., )

Petitioner-Appellee )

You are hereby notified that the Indiana Supreme Court

has on this date denied Appellant’s Petition for Rehearing.

dated September 18, 1978 Givan, C.J.

40a

APPENDIX E

OBJECTION BY PETITIONER TO INTRODUCTION

OF TAPES AS SUBSTANTIVE EVIDENCE AT

HEARING ON MOTION TO SET ASIDE

PROVISIONAL ORDER

MR. GROVE: Well, Your Honor, I previously filed and

submitted to the Court a motion and secondly, we have

cited to the Court the U.S. Code, Section 2511, Chapter

18 of the U.S. Code, and we contend, under the circum-

stances that there should be no reference whatsoever. We

feel that they are. . .were improperly and illegally taken.

That Statute, as the Court is aware, prohibits, without

advance notice to the participating party, the presence of

any kind of taped conversation. It provides that anyone

who willfully uses or endeavors to use or procures any

other person to use any electronic mechanical or other

device to intercept oral communications, and so and so

forth, I’m sure the Court is. . (Reprinted from Tr. p.

472, reprinted in its entirety in the Motion to Correct

Errors and Memorandum of Facts and Grounds in Sup-

port of the Motion Tr. p. 1; reprinted Appellants Brief

p. 57; and reprinted in Appellant’s Brief in Opposition to

Husband’s Motion to Transfer to Indiana Supreme Court

p. 10.)

4la

APPENDIX F

OBJECTION BY PETITIONER TO INTRODUCTION

OF TAPES AS SUBSTANTIVE EVIDENCE IN

HUSBANDS CASE-IN-CHIEF AT FINAL

HEARING ON PETITION FOR

DISSOLUTION OF MARRIAGE

MR. GROVE: Your Honor, we would, at this point

object to the admission. of the tapes and this is for

record purposes. We previously made a record and as

I recall, and I do not have a copy, as I recall the statute

before me, its 18 USC and I think its 1255 which, and

I provided the Court a copy of that statute which pro-

hibits the use or the taping of any conversations without

consent of the parties to the conversation. I’m sorry,

its 2511 - 18 USC - 2511 which prohibits the inter-

ception and disclosure of wire or oral communications

without certain conditions and it makes it a crime to so

publish those tapes unless the parties have knowledge

and unless the individual is a common carrier - notified -

they’ve gotten permission and we do not believe that

under that statute either under the prohibition found

in Section I a, b and sub-parts of b or under Section

II, they have established a basis, of that statute, they

have established a basis on which these tapes can be

admitted into evidence. They have neither established

that the tapes are done with consent or there was any

authority from the persons whose conversations were

being disclosed, had knowledge or consented to such

disclosure.

MR. RICE: Have you concluded?

MR. GROVE: Yes.

MR. RICE: _ I would like to ask a couple of omitted

questions in response to the objection.

2 > © > © >

42a

Now, on the dates that this device was placed in

your home, will you state whether or not you

and your wife were still married?

Yes, we were.

Was any restraining order or any other inhibition

placed upon you from going on or about the prem-

ises?

No. We both lived in the house.

You were living in the house yourself?

Yes.

And this was your own telephone?

Yes.

O.K. Will you state to the Court who placed the

bugging device on the phone?

I did.

You did, yourself?

Yes.

MR. RICE: You may re-cross examine.

CROSS EXAMINATION BY RODNEY H. GROVE:

Is it not true that the tape machine on which the

recording was made belongs to a detective agency,

Ira Clark Agency, here in Evansville?

It belongs to Rick Kirby who is the president of

that agency.

43a

All right.

Personal property I believe.

And he was the one who instructed you in the use

“in connection of the tape to the telephone wires?

Yes.

It was not disclosed to the respondent in this

case that the conversations were being taped?

No.

You were not an officer or an employee of any

communication common carrier, are you?

No.

You are not an officer or agent of the Federal

Communications Commission?

No.

I’m talking about - I’m directing your attention

to the time the wires were tapped. You were

in any official police capacity, were you?

No.

You are not a member or associated with any

executive branch of the United States Govern-

ment receiving its direct authority from the Presi-

dent of the United States are you or at the time

you made this tap?

No.

44a

Q. Did you notify any of the parties whose conver-

sations may have been recorded other than the

respondent in this case, that their telephone

conversations with the ‘phone number at the

residence which was what - what was that, your

‘phone number?

A, 867-5552.

Q. Did you notify any person that called that their

conversations were being taped in any way?

A. No.

Q. From your telephone you had the ability to call

long distance to anyplace in the United States,

do you not, Mr. Lopp?

A. I assume. Its an ordinary telephone is all I know.

Q. Have you ever placed a call long distance from

that particular telephone?

MR. RICE: We're going to object to that. The ques-

tion is whether or not you could possibly - whether or

not its taped, contains any interstate messages. I don’t

think that’s controlling either.

COURT: I don’t think it will help very much the

Court deciding this case anyway. I'll sustain the ob-

jection.

MR. GROVE: Well, I’m merely asking concerning provi-

sions of the statute.

MR. RICE: Have you concluded?

MR. GROVE: Yes. That’s my objection, your Honor.

45a

COURT: Well, 1’ll overrule the objection and admit

the Plaintiff's Exhibit No. 8 into evidence.

(Reprinted from TR. pp. 675-78; reprinted in Motion

to Correct Errors and Memorandum of Facts and Grounds

in Support of the Motion TR. p. 1; reprinted in Appel-

lants Brief p. 62; and reprinted in Brief in Opposition

to Husband’s Motion for Transfer to Indiana Supreme

Court pp. 10-13.)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.