February 2002

Using the Family Computer to Get the Goods

Laura W. Morgan

• White v. White, 344 N.J. Super. 211, 781 A.2d 85 (2001): In a divorce action, the husband filed a motion to suppress his e-mail that had been stored on the hard drive of the family computer. The court held that the wife did not unlawfully access stored electronic communications in violation of the New Jersey wiretap act, and wife did not commit the tort of intrusion on seclusion by accessing those e-mails. Here, the wife hired Gamma Investigative Research, which copied the files from the hard drive. The files contained e-mails and images he had viewed on Netscape. The company sent the wife a report on the contents of the files. The husband’s e-mail program, on AOL, requires a password.

Key to this decision is that once e-mails are downloaded from the e-mail server, they are not stored for the purpose of electronic transmission, and they are thus outside the protections of the wiretap act. Further, the wife was able to access the files without a password by going through other files.

• Byrne v. Byrne, 168 Misc. 2d 321, 650 N.Y.S.2d 499 (1996): The computer in this case was a laptop that was owned by the husband’s employer, Citibank, and used by the husband as part of his employment. The computer was also used by the husband for personal financial information unrelated to work. The wife took the laptop and gave to her attorney. The husband and employer asserted that the computer could not be accessed by the wife’s attorney.

The court held, “The computer memory is akin to a file cabinet. Clearly, [the wife] could have access to the contents of a file cabinet left in the marital residence. In the same fashion, she should have access to the contents of the computer. [The wife] seeks access to the computer memory on the grounds that [the husband] stored information concerning his finances and personal business records in it. Such material is obviously subject to discovery.”

• Stafford v. Stafford, 641 A.2d 348 (Vt. 1993): The wife found on the family computer a file called “MY LIST” which was an inventory and description of the husband’s sexual encounters with numerous women. The wife testified she found it on the family computer and that it was similar to a notebook that she had discovered the husband’s handwriting giving similar accounts. The notebook disappeared. “Plaintiff’s testimony of the source of the document as a file in the family computer was sufficient to identify what it was.”

• Hazard v. Hazard, 833 S.W.2d 911 (Tenn. Ct. App. 1991): The copy of a letter from the husband to his former attorney stored in the husband’s computer in the marital home, to which the wife had complete access, was not privileged.

Other sources:

• L. Kathryn Hedrick and Mark Gruber, Cybersex and Divorce: Interception of and Access to E-Mail and Other Electronic Communications in the Marital Home, 17 J. Amer. Acad. Matrim. L. 1 (2001)

• Brett R. Turner, Supplemental Notes on Discovery and Admissibility of Electronic Evidence, 13 Divorce Litig. 165 (Sept. 2001)

Cases

Allen v. Allen, No. 00-35528 (United States Ninth Circuit Court of Appeals, January 11, 2002): The wife sought relief from the automatic stay imposed by her former husband's bankruptcy filing so that she could pursue in California state court a modification of spousal support and an appeal of a dissolution judgment. The bankruptcy court denied relief on the ground that the wife failed to show adequate cause pursuant to 11 U.S.C. § 362(d)(1). The district court affirmed. The question the appellate court considered was the wife's efforts with respect to her dissolution proceedings should have been excepted from the automatic stay under 11 U.S.C. § 362(b)(2)(A)(ii), which exempts “the commencement or continuation of an action or proceeding for . . . the establishment or modification of an order for alimony, maintenance, or support.” The court held that to the extent they relate to spousal support, the dissolution proceedings fall within this exemption.

In re Marriage of Thornton, No. 149529 (California Court of Appeals, Second District, January 16, 2002): The separation agreement of the parties, incorporated into the judgment of divorce, provided that the husband shall pay alimony until the death of either party, or until March 2003. When the wife remarried, the husband stopped paying, arguing that her remarriage terminated the alimony as a matter of law. The appellate court agreed, and held that even though the judgment did not provide that the alimony terminate on remarriage, the statute so provided and was thus incorporated into the judgment. The only way around the statute was to explicitly so provide.

Roth v. Weston, 259 Conn. 202 (Connecticut Supreme Court, January 29, 2002): In the first major challenge to the state's grandparent visitation statute, Conn. Gen. Stat. § 46b-59, the court held that the statute was unconstitutional as applied in the present case, where the statute permitted third party visitation contrary to the wishes of a fit parent in the absence of any allegation and proof by clear and convincing evidence that the children would suffer actual harm if visitation were denied.

Matte v. Matte, No. 4D01-3703 (Florida Court of Appeals, Fourth District, January 23, 2002): The mother filed a motion for increase in child support, alleging that the father's income had substantially increased. The father answered, and sought production of documents from the mother, including the antenuptial agreement she had executed with her new husband. The trial court ordered disclosure, and the wife appealed. The appellate court agreed with the mother that the information sought was irrelevant and violated her new husband's right to privacy.

Burns v. Burns, No. A01A1827 (Georgia Court of Appeals, January 23, 2002): The husband and wife entered into an agreement in which they agreed that no child visitation would occur when the party being visited was cohabiting or having overnight stays with another adult to whom the parent was not married or related to the second degree. The mother then entered into a civil union with another woman in Vermont, and the father refused to allow the child to visit with the mother, invoking the agreement. The mother argued she was “married” and thus entitled to visitation. The court held that the civil union did not constitute a “marriage” under the agreement, and the trial court rightly enforced the agreement.

In re Marriage of Peters, No. 2—00—1277 (Illinois Court of Appeals, Second District, December 13, 2001): The question presented was whether a potential stock bonus was marital property. The court held that the bonus is similar to nonvested pension benefits in that petitioner must remain employed for a certain time before he will have a right to receive it. The bonus is similar to a nonvested stock option in that the recipient has the potential to receive stock in the employer. Thus, like Lewis, 785 P.2d 550 (Alaska 1990), any portion of the stock bonus earned during the marriage should be considered marital property.

Derose v. Derose, No. 97-734836-DM (Michigan Court of Appeals, January 25, 2002): The mother appealed an order granting paternal grandparent visitation with her daughter. (The father was actually the child's stepfather, and the grandparents were thus not blood related.) The trial court granted visitation as being in the best interests of the child. The Court of Appeals reversed, finding the Michigan grandparent visitation statute to be unconstitutional on its face in light of Troxel.

In re Marriage of Drag, No. 3-00-0935 (Illinois Court of Appeals, Third District, January 10, 2002): The appellant-wife appealed from an order upholding a pre-nuptial agreement. The wife argued that the pre-nuptial agreement was unenforceable because: (1) it was entered into without full disclosure; and (2) the attorney who represented Johanne had a conflict of interest. The court found ample disclosure, and found that the wife had waived any conflict of interest because she knew before she hired him that her attorney had represented the husband previously.

Dolan v. Dolan, No. COA01-103 (North Carolina Court of Appeals, January 2, 2002): The appellate court held that the trial court erred in considering hypothetical tax consequences of a sale of property in determining the value of the property.

Burkholder v. Burkholder, No. J-A34026-01 (Pennsylvania Superior Court, January 10, 2002): The mother moved the children to Florida without the father's consent. The father moved to change custody. The trial court denied his petition, and granted the mother's cross-petition for relocation. The court held that the trial court property applied the test in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), and that the move was in the children's best interests.

T.B. v. L.R.M., No. J-86-2001 (Pennsylvania Supreme Court, December 28, 2001): The court applied the doctrine of in loco parentis to allow the mother's lesbian partner, who had established a parent-like relationship with the child, to petition for visitation with the child.

Flanary v. Milton, No. 010220 (Virginia Court of Appeals, January 11, 2002): Is an oral property settlement agreement between spouses made during a deposition taken in furtherance of an action for divorce is valid? The court held that an oral agreement made in conjunction with the divorce proceedings was subject to the provisions of § 20-155. The agreement was not in writing and not signed by the parties, as required by statute. Therefore, the trial court erred in finding the agreement to be valid.

In re Paternity of Roger D.H., No. 00-3333 (Wisconsin Court of Appeals, January 17, 2002): The parties raised the following issues: (1) whether the circuit court erred when it vacated a visitation order providing for grandparent visitation because the court believed it could not interfere with the mother’s decision-making authority “absent a finding that [she] is an unfit parent”; and (2) whether the circuit court was prohibited from granting visitation to the grandmother because Wis. Stat. §767.245(3) (1997-98)2 is facially unconstitutional in that it does not require courts to give presumptive weight to a fit parent’s decision regarding non-parental visitation. The appellate court concluded that the circuit court erred when it determined that it could not grant visitation rights to the grandmother absent a showing of parental unfitness, and it rejected the argument that Wis. Stat. §767.245(3) is facially unconstitutional.

Periodicals

Family Law Journals and Symposia of Interest

15 American Journal of Family Law No. 4 (Winter 2001)

Gregg Herman, Collaborative Divorce (page 249)

David L. Walther, Dual Representation in Domestic Relations (page 251)

Robert G. Turner, Jr., CPA, CVA, Use of ESOP As a Creative Property Distribution Solution (page 254)

Francis W. Russell, ERISA and Division of Employee Benefits in Matrimonial Case (page 259)

C. Eileen Pruett, Model Standards of Practice for Family and Divorce Mediation: Guidelines for a Mature Profession (page 276)

Elizabeth M. Ellis, Ph.D. and Jonathan Levine, Conducting Psychological Evaluation in Relocation Cases (page 286)

Mark S. Luttrell, CPA, ABV and Jeff W. Freeman, CPA, ABV, CFE, Taxes and the Undervaluation of “S” Corporations (page 301)

Joshua Ehrlich, Ph.D., Losing Perspective: A Danger in Working with High-Conflict Divorces (page 307)

40 Family Court Review No. 2 (January 2002)

Robert E. Hirshon, The Importance of Unbundling (page 13)

Forrest S. Mosten, Unbundling: Current Developments and Future Trends (page 15)

Richard Zorza, Discrete Task Representation, Ethics, and the Big Picture: Toward a New Jurisprudence (page 19)

Comment, The Changing Face of Legal Practice: Trends in Thinking About Unbundled Legal Services — Twenty-Six Recommendations From the October 2000 Baltimore Conference (page 26)

Jona Goldschmidt, The Pro Se Litigant’s Struggle for Access to Justice: Meeting the Challenge of Bench and Bar Resistance (page 36)

Michael Robertson and Jeff Giddings, Legal Consumers as Coproducers: The Changing Face of Legal Service Delivery in Australia (page 63)

Franklin R. Garfield, Unbundling Legal Services in Mediation: Reflections of a Family Lawyer (page 76)

Hon. Judith L. Kreeger, To Bundle or Unbundle? That 1s the Question (page 87)

Margaret B. Flaherty, How Courts Help You Help Yourself: The Internet and the Pro Se Litigant (page 91)

Annie G. Steinberg, Barbara Bennett Woodhouse, and Alyssa Burrell Cowan, Child-Centered, Vertically Structured, and Interdisciplinary: An Integrative Approach to Children's Policy, Practice, and Research (page 116)

Katharine W. Scrivner, Crossover Kids: The Dilemma of the Abused Delinquent (page 135)

35 Family Law Quarterly No. 3 (Fall 2001)

Ann Bartow, Intellectual Property and Domestic Relations: Issues to Consider When There Is an Artist, Author, Inventor, or Celebrity in the Family (page 383)

Cynthia A. Samuel and Katherine S. Spaht, Fixing What’s Broke: Amending ERISA to Allow Community Property to Apply upon the Death of a Participant's Spouse (page 425)

Charlotte K. Goldberg, Value and Volatility: The New Economy and Valuing Businesses at Divorce (page 452)

Elizabeth Barker Brandt, Valuation, Allocation, and Distribution of Retirement Plans at Divorce: Where Are We? (page 469)

Tracy A. Thomas, The New Marital Property of Employee Stock Options (page 497)

Carol S. Bruch, Parental Alienation Syndrome and Parental Alienation: Getting It Wrong in Child Custody Cases (page 527)

R. Scott Smith, Disclosure of Post-Adoption Family Medical Information: A Continuing Birth Parent Duty (page 553)

Kathie Sumrow, Tax Boomerang: Are Your Clients’ Divorce Settlements at Risk? (page 567)

17 Journal of the American Academy of Matrimonial Lawyers No. 1 (2001)

L. Kathryn Hedrick and Mark Gruber, Cybersex and Divorce: Interception of and Access to E-Mail and Other Electronic Communications in the Marital Home (page 1)

W. Thomas McGough, Jr., Public Access to Divorce Proceedings: The Media Lawyer’s Perspective (page 29)

Laura W. Morgan, Strengthening the Lock on the Bedroom Door: The Case Against Access to Divorce Court Records On Line (page 45)

Alexandria Zylestra, The Road from Voluntary Mediation to Mandatory Good Faith Requirements: A Road Best Left Untraveled (page 69)

Gale Carpenter, Protecting Privacy of Divorcing Parties: The Move Toward Pseudonymous Filing (page 105)

Terra L. Henry Sapp, Grandparent Visitation Statutes in the Aftermath of Troxel v. Granville (page 121)

Courtney Waits, The Use of Mental Health Records in Child Custody Proceedings (page 159)

Nancy Levit, Annotated Bibliography: Family Privacy (page 183)

102 West Virginia Law Review No. 3 (Spring 2000)

Sally F. Goldfarb, No Civilized System of Justice: The Fate of the Violence Against Women Act (page 499)

Theresa Glennon, Somebody’s Child: Evaluating the Erosion Of the Marital Presumption of Paternity (page 547)

Cynthia R. Mabry, Second Chances: Insuring that Poor Families Remain Intact by Minimizing Socioeconomic Ramifications of Poverty (page 607)

Lisa Kelly, Conceiving Nonmarital Fathers’ Rights: An Inquiry into the Constitutionality of West Virginia’s Adoption Statute (page 667)

Katharine T. Bartlett, Grandparent Visitation: Best Interests Test is Not in Child’s Best Interests (page 723)

Karen Syma Czapanskiy, Musing About Community, or Why is it Better to be an American Grandparent than a Cuban Father? (Page 729)

Other Articles (alphabetical by author)

Martha Albertson Fineman, Fatherhood, Feminism and Family Law, 32 McGeorge Law Review 1031 (Summer 2001)

Robyn L. Ginsberg, Grandparents’ Visitation Rights: The Constitutionality of New York’s Domestic Relations Law Section 72 After Troxel v. Granville, 65 Albany Law Review 205 (2001)

William B. Rubenstein, Do Gay Rights Laws Matter?: An Empirical Assessment, 75 Southern California Law Review 1031 (2001)

Mark Strasser, When Is a Parent Not a Parent? On DOMA, Civil Unions, and Presumptions of Parenthood, 23 Cardozo Law Review 299 (November 2001)

Lois A. Weithorn, Protecting Children from Exposure to Domestic Violence: The Use and Abuse of Child Maltreatment Statutes, 53 Hastings Law Journal 1 (November 2001)

Jennifer Wriggins, Domestic Violence Torts, 75 Southern California Law Review 121 (2001)