Friday, August 15, 2014

Adultery, Emails and Spyware

After the Family Court in Lexington County, South Carolina granted a divorce to James Arthur Teeter III and Debra Teeter, James appealed the “court's rulings regarding the valuation and classification of property” at issue in the divorce and excluding “information obtained from the e-mail account of Debra Teeter (Wife) regarding her relationship with another man.” Teeter v. Teeter, 759 S.E.2d 144 (Court of Appeals of South Carolina May 2014).
This post examines James' argument concerning the emails and how the Court of Appeals resolved the issue.  Teeter v. Teeter, supra.
It begins by explaining that James (“Husband”) and Debra (“Wife”) were married in
November 1996. . . . Husband was employed as a stock broker for Prudential Securities. He owned several parcels of real estate including his residence, the Indian Creek property, and three rental properties. During the marriage, Husband changed employers and went to work for Legg Mason as a stock broker. He eventually founded his own investment firm, Apex Investment Advisors, LLC, in 2003.

Wife became a certified fraud examiner during the marriage. At the time of the temporary hearing in May 2009, Husband claimed gross annual income of $71,000 and Wife claimed $78,756. At the time of the final hearing, in 2011, Husband claimed gross annual income of $116,000 and Wife claimed $97,000. Husband and Wife always maintained separate checking accounts, and Husband put all his regular income, rental income, and proceeds from real estate transactions into his single account.

In 1998, Husband sold the Indian Creek property, and [they] bought their dream home (Bob White property). Husband generally made the mortgage payment on the property and paid for utilities and repairs, while Wife bought groceries and paid for childcare and other miscellaneous expenses. During the marriage, Husband purchased additional rental properties. The division of some of those properties is at issue on appeal. . . .

[A]fter the birth of their second child in 2001, they began to grow apart. After the parties separated in 2008, Husband suspected Wife was involved with another man. He testified he saw Wife's e-mail password written on a sheet of paper that was lying on top of her open purse while he was visiting the marital home to see the children.

Husband also testified he installed spyware on Wife's computer but indicated it did not produce any relevant information, only a couple of `garbled’ screen shots. Husband read some of Wife's e-mails, which revealed she had been in contact with a former colleague.

In one series of e-mails from 2009, Wife attempted to convince the man to meet her in Myrtle Beach. Additionally, Wife admitted at trial she had lied to Husband about attending a class reunion in Nashville and instead went to see the former colleague in Arizona in 2010. Wife never admitted to committing adultery. Husband admitted to committing post-separation adultery.
Teeter v. Teeter, supra (May, 2014).  (For what it's worth, South Carolina is one of several U.S. states in which adultery is still a crime.)
The Court of Appeals also noted that the Family Court had
previously granted the parties' divorce based on one year's continuous separation. With respect to equitable apportionment, the Family Court determined the division of marital assets should be 55%/45% in Husband's favor.

The family court excluded evidence of Wife's e-mails and the evidence flowing therefrom on the basis that their interception violated the Electronic Communications Privacy Act. However, the Family Court emphasized that Wife's alleged adultery had no impact on its division of assets.
Teeter v. Teeter, supra (May, 2014).
The appellate court began its analysis of James' argument concerning the exclusion of the emails by explaining that in
`reviewing the decision of the family court, an appellate court has the authority to find the facts in accordance with its own view of the preponderance of the evidence.’  S.C. Dep't of Soc. Servs. v. Sarah W., 402 S.C. 324, 741 S.E.2d 739 (Supreme Court of South Carolina 2013). `While this [c]ourt retains its authority to make its own findings of fact, we recognize the superior position of the family court in making credibility determinations.' S.C. Dep't of Soc. Servs. v. Sarah W., supra.  

Moreover, consistent with our constitutional authority for de novo review, an appellant is not relieved of his burden to demonstrate error in the family court's findings of fact.’ Lewis v. Lewis, 392 S.C. 381, , 709 S.E.2d 650 (South Carolina Supreme Court 2011).

Therefore, `the family court's factual findings will be affirmed unless appellant satisfies this court that the preponderance of the evidence is against the finding of the [family] court.’ Lewis v. Lewis, supra.
Teeter v. Teeter, supra (May, 2014).
The Court of Appeals then took up the issue of excluding the emails.  Teeter v. Teeter, supra.  In so doing, it was not simply reviewing what the Family Court judge did. 
The Court of Appeals issued its initial ruling in this case in March of 2014.  Teeter v. Teeter, supra (May, 2014).  It then issued a new opinion in May, which withdrew and superseded the March opinion in the case.  (And no, I do not know why it did that.)
The Court of Appeals began its consideration of his argument by noting that James
contends the family court erred in concluding he violated the Electronic Communications Privacy Act, 18 U.S.Code § 2515 (2000), based on a lack of credibility in his testimony that he accessed Wife's emails by means other than spyware. . . .
Teeter v. Teeter (March 2014).
It also explained that the Family Court
did not find Husband's testimony that he stumbled onto Wife's password to be credible. Husband admitted he installed spyware on Wife's computer for the purpose of monitoring her emails. The determination of credibility lies largely within the province of the family court.

The record supports the family court's factual finding in light of Wife's testimony that she had not written down her password and would have left it in her planner at work had she done so. The only way Husband knew to investigate Wife's out-of-town trip was by accessing her email account.

Without further argument or testimony that Husband's installation of the spyware did not violate the Act, Husband has not demonstrated the family court erred by excluding all the evidence related to Wife's relationship with her former colleague. . . .

Even if the family court erred in excluding evidence of the relationship, the court explicitly stated in its order that neither Wife's conduct nor Husband's post-separation adultery were considered in the equitable division of assets. The court determined Husband and Wife grew apart as a consequence of not communicating after the birth of their second child.

While Wife's post-separation contact with her former colleague was not completely irrelevant, the family court determined it did not impact the break-up of the marriage nor deplete the marital assets.

That is a finding well-within the family court's purview, and Husband has not met his burden of proving the family court erred.
Teeter v. Teeter (March 2014). 
The court then took up James’ claim concerning the applicability of the Electronic Communications Privacy Act, 18 U.S. Code § 2515 to the issue concerning the emails in this case.  Teeter v. Teeter, supra.  Section 2515 provides as follows:
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.
Teeter v. Teeter, supra (March 2014).  In other words, if James used spyware to “intercept” Debra’s password and read her emails, then evidence of the relationship he learned about from those emails could not be used in the divorce proceeding. 
The Court of Appeals rather efficiently disposed of this issue by basically reiterating what it had said in its original opinion:
The family court did not find Husband's testimony that he stumbled onto Wife's password to be credible. Husband admitted he installed spyware on Wife's computer for the purpose of monitoring her e-mails. The determination of credibility lies largely within the province of the family court.

The record supports the family court's factual finding in light of Wife's testimony that she had not written down her password and would have left it in her planner at work had she done so.

The only way Husband knew to investigate Wife's out-of-town trip was by accessing her e-mail account. Without further argument or testimony that Husband's installation of the spyware did not violate the Act, Husband has not demonstrated the family court erred by excluding all the evidence related to Wife's relationship with her former colleague. See Rickenbaker v. Rickenbaker, 290 N.C. 373, 226 S.E.2d 347 (Supreme Court of North Carolina 1976) (holding all evidence regarding the wife's adulterous conduct derived by the husband's interception of her phone calls inadmissible under the Act).

Even if the family court erred in excluding evidence of the relationship, the court explicitly stated in its order that neither Wife's conduct nor Husband's post-separation adultery were considered in the equitable division of assets. 

The court determined Husband and Wife grew apart as a consequence of not communicating after the birth of their second child. While Wife's post-separation contact with her former colleague was not completely irrelevant, the family court determined it did not impact the break-up of the marriage nor deplete the marital assets.

That is a finding well-within the family court's purview, and Husband has not met his burden of proving the family court erred.
Teeter v. Teeter, supra (May, 2014).
For these and other reasons, the Supreme Court affirmed the Family Court’s ruling on this issue. Teeter v. Teeter, supra (May, 2014).  

If you would like to learn more about how the Electronic Communications Privacy Act applies, and does not apply, to emails and other data that might be at issue in a divorce, check out the articles you can find here and here.

No comments: