Glenn A. Griffin v. Cristie J. Griffin , 2014 Me. LEXIS 77 ( 2014 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2014 ME 70
Docket: Kno-13-275
Argued: April 9, 2014
Decided: May 22, 2014
Panel: SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.
GLENN A. GRIFFIN
v.
CRISTIE J. GRIFFIN
ALEXANDER, J.
[¶1] Cristie J. Griffin appeals from a divorce judgment entered in the
District Court (Rockland, Worth, J.) that awarded primary residence of the parties’
young child to Glenn A. Griffin and rights of contact to Cristie. Cristie presents
several issues on appeal, of which we give extended consideration to two:
(1) whether the court erred in denying Cristie’s motion in limine and permitting
Glenn to play recordings at trial that he had made of telephone conversations
between Cristie and the child because, she asserts, the recordings were made in
violation of Maine’s Interception of Wire and Oral Communications Act (the Act),
15 M.R.S. §§ 709-713 (2012),1 and (2) whether the court erred when it ordered that
the appointed guardian ad litem (GAL) approve, post-judgment, the counselor for
1
Certain portions of the Interception of Wire and Oral Communications Act, 15 M.R.S. §§ 709-713
(2012), were amended after the operative events in this case by P.L. 2013, ch. 80, §§ 1-4 (effective
Oct. 9, 2013) and by P.L. 2013, ch. 267, § B-5 (effective Oct. 9, 2013).
2
Cristie, who was ordered to attend counseling as a condition for her continued
rights of contacts with her child. Concluding that the court erred in extending the
duties of the GAL beyond the entry of the final divorce judgment, we vacate that
portion of the judgment ordering that the GAL continue services post-judgment to
approve Cristie’s counselor. We affirm the judgment in all other respects.
[¶2] In addition to the two issues addressed above, Cristie argues that the
court abused its discretion or erred by (1) allowing Glenn’s recordings to be played
at trial because the recordings were not original, complete, or authentic; (2) not
“disqualifying” the GAL’s report because, in Cristie’s view, the GAL failed to
conduct a thorough investigation, report pertinent findings, and address all of the
statutorily required best interests of the child factors, see 19-A M.R.S. § 1507(4)
(2013), and because the report illegally discloses the recordings that were illegally
obtained; (3) limiting Cristie’s examination of the GAL about the contents of her
report at trial, in violation of due process; (4) ordering Cristie to pay a portion of
the GAL’s fees without determining the reasonableness of those fees or finding
that Cristie has the ability to pay; and (5) ordering Cristie to provide to her
counselor a copy of the telephone recordings.
[¶3] We conclude that the phone conversations were properly recorded and
that the court did not err or abuse its discretion in admitting and considering the
contested recordings and in requiring that the recordings be provided to Cristie’s
3
counselor. Nor has Cristie demonstrated that the GAL’s investigation, including
multiple interviews and sixty-nine hours of work, was insufficiently thorough or
that her report was incomplete, or that the court improperly limited the
examination of the GAL, or abused its discretion in requiring Cristie to pay the
portion of the GAL’s costs.
I. CASE HISTORY
[¶4] Glenn and Cristie Griffin married in 1999 and have a daughter who
was born in October 2006. Glenn filed a complaint for divorce in December 2011,
at which time he moved out while Cristie and the child stayed in the family home
in Washington. In May 2012, the Family Law Magistrate (Mathews, M.)
appointed a GAL, and ordered that the costs for the GAL’s services be paid by the
parties. The appointment order placed no limits on the services that the GAL
might perform or the fees that the GAL might charge, but it did limit the term of
the GAL’s appointment to “the duration of the case.”2
[¶5] After Glenn moved out of the home, Cristie demonstrated a pattern of
attempting to control Glenn’s interactions with their child, which included her plan
to relocate with the child to Bangor on September 1, 2012. When Glenn learned
that Cristie intended to move the child away from the only home, school, and
2
After the GAL order was entered in this case, the District Court leadership promulgated a new
format for GAL appointments, requiring specific directions to the GAL and express limits on the fees of
the GAL.
4
community the child had ever known at a time when the divorce proceeding was
becoming increasingly contentious, he moved for a temporary restraining order and
preliminary injunction to prevent Cristie from moving the child. Nonetheless,
Cristie moved to Bangor on or around August 18, 2012.
[¶6] On August 23, 2012, after a hearing, the court (Worth, J.) entered an
interim order assigning shared parental rights and responsibilities to Glenn and
Cristie, but allocating primary residence of the child to Glenn at the family home in
Washington. Cristie was granted contact with the child from Friday evenings to
Sunday evenings. The August 23 order also directed the parties to “refrain from
making . . . any disparaging statements about the other party in the presence of the
other party or the minor child.” Additionally, the order stated that both parties
“shall have reasonable telephone contact with the minor child.”
[¶7] Glenn moved back into the family home in Washington, and the child
lived with him at the home during the week. Beginning in August 2012, Cristie
had a twenty-five to thirty-minute cell phone conversation with the then five- to
six-year-old child each evening when the child was at Glenn’s home. Glenn
sometimes overheard portions of Cristie’s side of these conversations, because
Cristie spoke loudly through the phone. At times, he heard Cristie make
disparaging statements about him and make other emotionally harmful comments
to the child, such as indicating to the child that Glenn did not know how to parent
5
the child or how to take care of her, suggesting to the child that she “[b]e mean to
daddy,” telling the child that Glenn cared more about his new girlfriend than he did
about the child, and telling the child that Glenn’s mother, “Nana,” was “stupid.”
Glenn observed that the child was sometimes unhappy or disturbed after the calls.
[¶8] Concerned by what he overheard Cristie say to the child, Glenn
consulted with his attorney and the GAL. In November 2012, Glenn recorded
some of the conversations between Cristie and the child, using a smartphone and a
“Bluetooth device that records.” Conversations captured on the recordings were
similar to the conversations that Glenn had previously overheard. Although Glenn
was apparently not aware of it at the time, Cristie was also recording her phone
conversations with the child.
[¶9] The recordings revealed that Cristie would at times bully and berate the
child, manipulate her emotionally, threaten to stop talking to the child if she did
not do as Cristie wanted, criticize the child for not seeming to care enough for
Cristie, and scold the child for failing to keep secrets from Glenn. During one
conversation, the child began to cry in response to Cristie’s comments. Cristie
continued to make disparaging remarks to the child about Glenn and the quality of
care he provided for the child, told the child that Glenn was “pathetic,” a “loser,”
and a “liar,” and asked the child to report Glenn’s activities to Cristie.
6
[¶10] In December 2012, Glenn filed a motion for contempt, alleging that
Cristie was violating the August 2012 interim order by repeatedly making
disparaging remarks about him to the child. The court avoided duplicative
hearings by deferring consideration of the contempt motion for hearing during the
upcoming divorce trial. Cristie moved in limine to exclude from trial, pursuant to
the Interception of Wire and Oral Communications Act, Glenn’s telephone
recordings and all references to them and to exclude the GAL’s report because it
referenced and relied on the recordings. The court ordered that it would also
consider that motion at trial.
[¶11] The court held a trial on the divorce complaint over the course of four
days in January and February 2013. At the beginning of the first day, the court
heard argument on Cristie’s motion in limine and denied the motion, allowing
Glenn’s telephone recordings to be played at trial. Cristie had also argued before
trial began that she had had no opportunity to listen to the recordings prior to trial
or to authenticate them, so the court delayed the trial to allow Cristie to listen to the
recordings. Cristie did not renew any objection to their admissibility when the
recordings were subsequently played during the trial. At trial, Glenn played
recordings of four telephone conversations between Cristie and the child. Cristie
subsequently played her own recordings of calls she made to the child in
7
November 2012 and of conversations that she had with Glenn at times when she
transferred the child back to Glenn after she had weekend visitation.
[¶12] On April 17, 2013, the court entered a judgment of divorce and found
Cristie in contempt for her violation of the August 2012 interim order because she
had repeatedly disparaged Glenn during the phone calls to the child. The court
found that Cristie’s remarks “created a significant risk of harm to the young child.”
The court also found that Cristie was in contempt of the court’s interim order when
she verbally assaulted Glenn in front of the child during a transfer of the child.
[¶13] Cristie moved for further findings of fact and conclusions of law with
respect to the divorce judgment and the contempt order, to alter or amend the
divorce judgment to allow her to have telephone contact with the child while the
child was in Glenn’s care, and to correct the divorce judgment. The court granted
in part the motion for findings and conclusions concerning the contempt order,
finding that Glenn’s in-court testimony about what he overheard Cristie say to the
child in the nightly phone calls, the GAL’s testimony and report, Cristie’s
testimony, and the parties’ recordings played at trial all supported the contempt
order. The court either granted in part or denied Cristie’s remaining motions,
including denying Cristie’s request to amend the divorce judgment to permit
telephone contact.
8
[¶14] The court entered an amended divorce judgment on May 9, 2013.
Like the original divorce judgment, the amended divorce judgment awarded shared
parental rights and responsibilities in most respects, except that Glenn was granted
responsibility for making all non-emergency health care decisions for the child.
The court allocated primary residence of the child to Glenn and rights of contact to
Cristie every other weekend during the school year, weekly during the summer,
and on or around holidays as agreed by the parties. The court also ordered that, as
a condition of having contact with the child, Cristie must engage in post-judgment
counseling with a counselor “approved by the [GAL] to address issues concerning
her anger and her co-parenting ability.”
[¶15] In awarding primary residence to Glenn, the court acknowledged that
it “would be a somewhat closer case, were it not for the conversations that [Cristie]
recorded and that [Glenn] overheard and recorded.” The court found that Glenn,
“alarmed by the content of [Cristie’s] conversations with [the child],” made the
recordings believing it to be in the child’s best interests to preserve Cristie’s words
and for the reasons he had stated in his opposition to Cristie’s motion in limine.
Cristie timely appealed from the final judgment. See 14 M.R.S. § 1901(1) (2013);
M.R. App. P. 2.
9
II. LEGAL ANALYSIS
A. The Admissibility of Glenn’s Telephone Recordings
[¶16] Cristie argues that Glenn violated the Interception of Wire and Oral
Communications Act, 15 M.R.S. § 710, when he intentionally recorded, and
disclosed to others, phone conversations between Cristie and the parties’ minor
daughter, thus intercepting “oral communications” without the consent of either
party to the call, and that no exception to 15 M.R.S. § 712 applied to allow Glenn
to consent vicariously on behalf of their daughter to record those conversations.
She argues that Glenn’s recordings were therefore inadmissible at trial pursuant to
15 M.R.S. § 713 and that the court erred when it denied her motion in limine,
allowed the recordings to be played at trial, and relied on those recordings in the
final divorce judgment, contempt order, and post-judgment orders. Cristie does
not dispute that she made ugly, disparaging comments about Glenn to their
six-year-old daughter, or that she used the phone calls to manipulate and distress
the child.
[¶17] The issue presented requires us to determine whether, under the Act, a
parent may vicariously consent on behalf of his minor child to record oral or wire
communications between the child and another party. We address the issue here in
the context of this case, with phone conversations involving a six-year-old child,
10
when the parent recording the conversations had reason to believe that the
conversations would include statements harmful to the child.
[¶18] We review the interpretation and application of a statute de novo,
looking first to the plain language of the statute and rejecting any interpretation
that would produce “absurd, illogical or inconsistent results.”3 Sparks v. Sparks,
2013 ME 41, ¶ 14, 65 A.3d 1223; Young v. Young, 2009 ME 54, ¶ 8, 973 A.2d
765. If the statutory language is ambiguous, meaning that it is “reasonably
susceptible to multiple interpretations,” or is silent on a particular point, we will
“then consider other indicia of legislative intent including the purpose of the
statute.” Sparks, 2013 ME 41, ¶ 14, 65 A.3d 1223.
1. Maine’s Interception of Wire and Oral Communications Act
[¶19] Subject to certain exceptions not applicable here, a person commits a
Class C crime if he or she “intentionally or knowingly intercepts, attempts to
intercept or procures any other person to intercept or attempt to intercept, any wire
or oral communication.” 15 M.R.S. §§ 710(1), 712. A person “intercepts” a wire
or oral communication when, as relevant here, the person hears or records “the
3
After the court denied her motion in limine seeking to exclude Glenn’s recordings on the grounds
that he made them in violation of the Act, Cristie did not renew her objection during trial to the
admissibility of the recordings, as is generally required to preserve the issue on appeal. See M.R. Evid.
103(c); Anderson v. O’Rourke, 2008 ME 42, ¶ 13, 942 A.2d 680; Field & Murray, Maine Evidence
§ 103.7 at 28–29 (6th ed. 2007). However, the context of the court’s ruling on Cristie’s motion in limine
“clearly demonstrates” that the ruling was final, and we therefore address the merits of Cristie’s
argument. M.R. Evid. 103(c).
11
contents of any wire or oral communication through the use of any intercepting
device”4 unless the person (1) is the “sender or receiver of that communication,”
(2) is “within the range of normal unaided hearing . . . ,”5 or (3) was “given prior
authority by the sender or receiver.” 15 M.R.S. § 709(4).6 Subject to certain
exceptions also not applicable here, the contents of a communication that has been
intercepted in violation of the statute, within the meaning of the Act, are not
admissible in court. 15 M.R.S. § 713.
[¶20] The court permitted Glenn to play at trial recordings that he had made
of four different conversations that Cristie had with the child in November 2012.
The parties do not dispute that Glenn recorded the conversations on an intercepting
device and that he was not physically the sender or the receiver of those
communications, even though he may have initially received the phone calls at
4
“Contents” means “any information concerning the identity of the parties to such communication or
the existence, contents, substance, purport or meaning of that communication.” 15 M.R.S. § 709(2). An
“[i]ntercepting device” means “any device or apparatus which can be used to intercept a wire or oral
communication” other than (1) a telephone or telegraph instrument, equipment or facility or component
thereof used by a communication common carrier in the ordinary course of its business; (2) extension
telephones used by a subscriber to phone service; or (3) a hearing aid or similar device that corrects
subnormal hearing to not better than normal hearing. 15 M.R.S. § 709(3).
5
Cristie specifically challenges the admissibility of the four telephone recordings that Glenn made of
her conversations with the child. To the extent that she suggests that Glenn was not permitted to testify to
the contents of Cristie’s communications with the child that he overheard, but did not record—
communications that also supported the court’s contempt order and the divorce judgment—we are
unpersuaded. See 15 M.R.S. § 709(4).
6
“Oral communications” and “[w]ire communication” are defined in 15 M.R.S. § 709(5) and (7).
Given our holding, we do not address the parties’ arguments as to whether Glenn’s recorded
conversations constituted oral, or wire, communications within the meaning of the statute.
12
issue.7 The dispute centers on whether the recordings nonetheless fall outside of
the sweep of the Act, and were therefore admissible at trial, because Glenn had
“prior authority” from the sender or receiver of the communication to record the
communication. 15 M.R.S. § 709(4)(C); see State v. Kehling, 601 A.2d 620,
623-24 (Me. 1991).
2. Vicarious Consent to Record
[¶21] As pertinent here, a person who is not the sender or receiver of a
communication may not intentionally or knowingly use an intercepting device to
hear or record an oral or wire communication unless he or she has been given
“prior authority by the sender or receiver.” 15 M.R.S. §§ 709(4), 710(1). Under
Maine law, only the sender or receiver of the communication—not both—needs to
give prior authority. See 15 M.R.S. §§ 709(4)(C); Kehling, 601 A.2d at 624.
[¶22] Cristie did not give prior authority to Glenn to record her
conversations with the child.8 Additionally, neither party in this case argues that
7
Given that the child was only six years old, Glenn may have physically initially received the evening
phone calls between Cristie and the child in November 2012, but there are no findings on this point, and
regardless, the “contents” of the communications at issue here occurred in conversations between the
child and Cristie to which Glenn was not a party. See 15 M.R.S. § 709(2) (defining “[c]ontents” of
communications for purposes of the Act).
8
Although Cristie testified at trial that she was concerned that Glenn might be listening to her
conversations, that cannot be construed as Cristie’s authorizing Glenn to intercept her conversations with
the child, despite her recognition that Glenn might sometimes be able to overhear parts of the
conversation unaided. Cf. State v. Kehling, 601 A.2d 620, 624 (Me. 1991) (interpreting a prior version of
the parallel federal law, 18 U.S.C.A. § 2511(2)(c), (d) (Supp. 1991), to conclude that a party may give
“implied consent” to be recorded for purposes of Maine’s law, and that such implied consent to a third
party could be inferred from the surrounding circumstances).
13
the child explicitly authorized Glenn to record her communications in November
2012 or that, as a six-year-old child, she was legally capable of giving prior
authority to Glenn to intercept the communications. However, citing cases from
other jurisdictions, Glenn argues that, as the child’s parent, he could and did
vicariously consent on behalf of the child to record those calls.
[¶23] The statute does not define “given prior authority,” 15 M.R.S.
§ 709(4)(C), and we cannot determine from the plain language of the statute
whether the Legislature intended “given prior authority by the sender or receiver”
to include a parent’s decision to intercept a communication to or from his or her
young child. We therefore consider other sources for guidance, including
decisions from other jurisdictions that interpret the parallel federal law,
18 U.S.C.A. § 2511(2)(c), (d) (West, Westlaw through P.L. 113-93 (excluding
P.L. 113-79) approved 4-1-14);9 see Kehling, 601 A.2d at 624, and similar state
9
Title 18 U.S.C.A. § 2511(2)(c), (d) (West, Westlaw through P.L. 113-93 (excluding P.L. 113-79)
approved 4-1-14) states:
(c) It shall not be unlawful under this chapter for a person acting under color of law to
intercept a wire, oral, or electronic communication, where such person is a party to the
communication 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, oral, or electronic communication where such person is a party to the
communication or where one of the parties to the communication has given prior consent
to such interception unless such communication 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.
14
statutes that permit a third party to intercept a communication with the prior
consent or authorization of one party to the communication.
[¶24] The majority of jurisdictions that have interpreted laws similar to
15 M.R.S. §§ 709(4)(C) and 710(1) have held that a parent or guardian may
vicariously consent on behalf of his or her minor child to record or otherwise
intercept an oral or wire communication of which that child is the sender or
receiver, and may do so without violating those laws, when the parent or guardian
“has a good faith, objectively reasonable basis for believing that it is necessary and
in the best interest of the child to consent” on the minor child’s behalf to the
recording. Pollock v. Pollock, 154 F.3d 601, 610 (6th Cir. 1998) (interpreting the
federal wiretapping statute); State v. Spencer, 737 N.W.2d 124, 128-34 (Iowa
2007) (interpreting the consent exception in Iowa law to include the vicarious
consent doctrine); State v. Whitner, 732 S.E.2d 861, 863-65 (S.C. 2012)
(interpreting the consent provision in South Carolina law and collecting cases);
accord Wagner v. Wagner, 64 F. Supp. 2d 895, 896, 899-901 (D. Minn. 1999)
(interpreting federal and state law); Campbell v. Price, 2 F. Supp. 2d 1186, 1189,
1191-92 (E.D. Ark. 1998) (interpreting federal law).10
10
See also Silas v. Silas, 680 So. 2d 368, 369-72 (Ala. Civ. App. 1996) (interpreting federal and state
law to hold that the father could vicariously consent to the recordings because he had “a good faith basis
that [was] objectively reasonable for believing that the minor child [was] being abused, threatened, or
intimidated by the [mother]”); Smith v. Smith, 923 So. 2d 732, 737-41 (La. Ct. App. 2005) (construing
Louisiana law to hold that the father could vicariously consent to record his child’s conversations with the
mother from a phone in the father’s home); cf. Commonwealth v. F.W., 986 N.E.2d 868, 873-77 (Mass.
15
[¶25] Many of these jurisdictions have interpreted the consent provision of
their anti-interception or wiretap laws to include vicarious consent in the context of
child custody matters, holding that one parent could vicariously consent to the
interception of the minor child’s conversation with the other parent, almost always
on the condition that the intercepting parent had a good faith, objectively
reasonable belief that recording was necessary and in the child’s best interests.
See Pollock, 154 F.3d at 603-04, 610 (holding that one parent may vicariously
consent, on behalf of a minor child in the parent’s custody, to record the
conversations between the child and the other parent in the context of a generally
ongoing child custody dispute); Campbell, 2 F. Supp. 2d at 1187-91;11 see also
Spencer, 737 N.W.2d at 132 (collecting cases in which the vicarious consent
doctrine has been applied in the context of custody battles); supra n.10 (discussing
additional cases).
2013) (collecting cases and noting in dicta that “[w]ere the victim’s father the person who made the
recording at issue here, we would not hesitate to apply the vicarious consent doctrine” before holding that
the victim’s adult half-sister could vicariously consent); Lawrence v. Lawrence, 360 S.W.3d 416, 419-21
(Tenn. Ct. App. 2010) (construing Tennessee law to hold that, as a matter of law, the mother had the right
to vicariously consent to recording her very young child’s conversations with the father). Contra State v.
Williams, 599 S.E.2d 624, 630 (W. Va. 2004) (declining to adopt the vicarious consent doctrine on the
grounds that there was no federal or state statutory basis for doing so, but affirming the admissibility of
the recording into evidence in a criminal matter on the theory that the fifteen-year-old minor participating
in the conversation consented to recording it).
11
In Campbell v. Price, the court held that the father could vicariously consent to recording
conversations between his daughter in his custody and her mother, without first obtaining consent from
either the child or her mother, because he was acting in good faith and necessarily in his daughter’s best
interests to determine why his daughter would cry and become upset after speaking with her mother on
the phone. 2 F. Supp. 2d 1186, 1187, 1189, 1191 (E.D. Ark. 1998).
16
[¶26] The law is ‘“firmly established”’ that “parents have ‘a fundamental
liberty interest to direct the care, custody, and control of their children.”’ Pitts v.
Moore, 2014 ME 59, ¶ 11, --- A.3d --- (quoting Davis v. Anderson, 2008 ME 125,
¶ 18, 953 A.2d 1166 (citing Troxel v. Granville, 530 U.S. 57, 65 (2000); Rideout v.
Riendeau, 2000 ME 198, ¶ 12, 761 A.2d 291)). Parents also “have a duty to
protect their children because children ‘often lack the experience, perspective, and
judgment to recognize and avoid choices that could be detrimental to them.’”
Spencer, 737 N.W.2d at 132 (quoting Bellotti v. Baird, 443 U.S. 622, 635 (1979)).
[¶27] Consistent with these decisions, we conclude that the Maine
Legislature has not “intended to subject parents and guardians to criminal and civil
penalties when, out of concern for the best interests of their minor child, they
record that child’s conversations.” Spencer, 737 N.W.2d at 134; see, e.g., Comm.
Amend. A to L.D. 1925, No. S-456, Statement of Fact (109th Legis. 1980)
(explaining that the Act was being amended to more expansively permit the
receiver, as well as the sender, of a communication to give permission to record).
We therefore hold that the consent provision of the Act, 15 M.R.S. § 709(4)(C),
authorizes a parent or guardian to vicariously consent, that is, give “prior
authority,” on behalf of his or her minor child, to intercept the child’s oral or wire
communications with another party when the parent or guardian has a good faith,
17
objectively reasonable belief that it is necessary and in the child’s best interest to
do so.12
[¶28] We caution, however, that today’s decision is not an invitation for
parents to routinely record or otherwise intercept their children’s communications,
whether in the course of divorce or custody disputes or otherwise. See Spencer,
737 N.W.2d at 131. In applying the vicarious consent doctrine included in
15 M.R.S. § 709(4)(C), there is no presumption that a parent intercepting the oral
or wire communications between the minor child and another person is doing so in
furtherance of the child’s best interests. In order to avoid the exclusionary
application of the Act, the parent intercepting the communication between the
child and another person assumes the burden to demonstrate that he or she did so
with a good faith, objectively reasonable belief that it was necessary and in the
child’s best interest to authorize the recording on behalf of the child.
12
Cristie asserts that such a rule would violate her expectation or constitutional right of privacy, but
we conclude that Glenn’s recordings, made on a telephone in Glenn’s home while the child was in his
care, were made as a result of vicarious consent on behalf of one party to the calls, and therefore do not
violate an expectation or right of privacy any more than if Glenn recorded his own phone conversations
with Cristie without informing her, just as Cristie recorded conversations that she had with Glenn without
informing him. See, e.g., State v. Whitner, 732 S.E.2d 861, 870 n.12 (S.C. 2012) (Pleicones, J.,
concurring) (“[O]ne party to a protected communication has no expectation of privacy under the [state]
Wiretap Act if the other party consents to recording or disclosure. Thus, the third party’s interest in
nondisclosure has no bearing on the question whether a parent may vicariously consent on behalf of his
child.”)
Cristie also argues without citation that Glenn fails to take into consideration her fundamental right to
parent the child, but we assume that she does not argue that her right to parent the child, which in this
context appears to mean a right to emotionally abuse the child free from Glenn’s interference, trumps
actions Glenn would take in the best interests of the child.
18
[¶29] Additionally, we do not address whether there is an age at which a
child, albeit still a minor, may be deemed too old or mature for a parent to
authorize or vicariously consent to the recording of the child’s communications.
See Spencer, 737 N.W.2d at 131 (concluding that the age of the child is a factor to
consider when determining whether a parent or guardian can vicariously consent
for the minor child, though noting that a child’s ability to consent to recording is
“not mutually exclusive” to the parent’s ability to vicariously consent). In this
case, the six-year-old child was too young by any measure to have provided or
withheld prior authority to record the calls.
[¶30] Having concluded that vicarious consent to intercept a communication
is available under the Act, we consider whether the record supports the court’s
determination that Glenn properly provided such vicarious consent in this case.
The District Court found that Glenn recorded the child’s conversations with Cristie
after he determined that “it would be in the child’s best interest to preserve
[Cristie’s] words by recording them.” The court also found that Glenn recorded
the conversations for “reasons set forth in [his] memorandum” opposing Cristie’s
motion in limine. In that memorandum, Glenn asserted that he recorded the
conversations after overhearing Cristie, during phone calls with the child, make
statements that were “emotionally abusive” and “harmful” to the child and
19
disparaging him and his parents and after witnessing the “dramatic and immediate
negative effect” that Cristie’s conduct had on the child.
[¶31] The court’s findings are supported by competent record evidence, the
most important of which is that Glenn had, with his unaided hearing, overheard
Cristie emotionally abuse the child by speaking about Glenn and the young child’s
other caretakers in derogatory terms, before he took the step of recording the
communications. We also note that Glenn, in furtherance of the child’s best
interests, properly did not prohibit Cristie from calling the child because Cristie
was permitted by court order to call the child. Glenn appropriately sought an order
finding Cristie in contempt of specific provisions of the August 2012 interim order
and provided evidence to the court that would aid it in making primary residence
and contact decisions.
[¶32] In short, because Glenn had a good faith, objectively reasonable basis
for believing that recording the child’s calls with Cristie was necessary and in the
best interests of the child, and because the child herself was only six years old,
Glenn could provide prior authority or consent on the child’s behalf to recording
the calls under the consent exception at 15 M.R.S. § 709(4)(C), and the court did
not err in permitting Glenn’s recordings to be played at trial.
20
B. The GAL’s Post-Judgment Duties
[¶33] The court may appoint a GAL in certain contested proceedings,
including divorce proceedings in which a minor child is involved, and “[a]t the
time of the appointment, the court shall specify the guardian ad litem’s length of
appointment,” as well as duties and fee arrangements. 19-A M.R.S. § 1507(1)
(2013).
[¶34] In this case, the order of appointment made the GAL’s appointment
effective “for the duration of the case.” The plain meaning of this order is that the
GAL’s appointment was effective until the case was concluded, meaning when the
court entered a final judgment. See M.R. Civ. P. 115(b); MacPherson v. Estate of
MacPherson, 2007 ME 52, ¶¶ 5-9, 919 A.2d 1174 (stating that court action that
fully decides and disposes of a matter is a final judgment when entered); Bates v.
Dep’t of Behavioral & Dev’l. Servs., 2004 ME 154, ¶ 38, 863 A.2d 890 (stating
that we review a trial court’s interpretation of its own order de novo on questions
of law and deferentially on discretionary issues).
[¶35] This interpretation of the plain language of the court’s appointment
order is consistent with the GAL appointment requirements of 19-A M.R.S.
§ 1507(3) (2013). Although section 1507(3)(B)(10) authorizes the court to assign
a GAL certain specified duties as well as “[o]ther duties that the court determines
necessary,” nothing in 19-A M.R.S. § 1507 (2013), providing for the appointment
21
of a GAL “[i]n contested proceedings,” suggests that a court may assign duties to a
GAL that extend beyond the entry of a final judgment. See, e.g., 19-A M.R.S.
§ 1507(5) (stating that the GAL’s final written report must be provided
“reasonably in advance of the hearing”).
[¶36] In this case, the court’s final divorce judgment ordered Cristie to give
approval authority over her choice of counselor to the GAL, which authorized the
GAL to continue working with this family—and presumably submit invoices
requiring payment—after the entry of the final divorce judgment. This grant of
post-judgment authority is neither contemplated in the GAL’s appointment order
nor authorized by statute. Once an adversarial relationship had developed between
the mother and the GAL, it would generally be contrary to therapeutic goals to
allow that GAL to choose a counselor for the mother. Accordingly, we vacate the
portion of the final divorce judgment that instructs the GAL to approve Cristie’s
choice of a post-judgment counselor, and we remand for the court to enter any
further order regarding counseling.
The entry is:
Judgment vacated to the extent that it ordered
Cristie to have the GAL approve her counselor
post-judgment. Judgment affirmed in all other
respects.
_____________________________________
22
On the briefs and at oral argument:
Kelly E. Mellenthin, Esq., Lincolnville, for appellant Cristie J.
Griffin
Philip S. Cohen, Esq., Cohen & Cohen, Waldoboro, for
appellee Glenn A. Griffin
Rockland District Court docket number FM-2011-300
FOR CLERK REFERENCE ONLY