Evidence in divorce cases can come in many different formats, including photographs, videos, and electronic communications. This evidence, when obtained in a lawful manner, can be extremely persuasive in a divorce case. In a recent divorce case heard by the Court of Appeals of Georgia, the wife secretly installed video cameras in the marital residence in an effort to obtain information that would help her win custody of the parties’ children. Rutter v. Rutter, A12A0661 (2012). The husband filed a motion to exclude any evidence obtained from the video surveillance, arguing that the wife’s use of these video devices was a violation of OCGA §16-11-62(2), “which makes it generally unlawful for one to conduct video surveillance of another in a private place, out of public view, and without his consent.” Id. The trial court denied the husband’s motion, relying on an exception to the statute which allows a person to conduct video surveillance of persons “[t]o use for security purposes, crime prevention, or crime detection any device to observe, photograph, or record the activities of persons who are within the curtilage of the residence of the person using such device.” OCGA §16-11-62(2)(C). The husband appealed.
On appeal, the husband first argued that the residence itself is not “within the curtilage of a residence.” Rutter. The Court of Appeals disagreed, using the rule of lenity to conclude that the curtilage does, in fact, include the residence itself.
The husband next argued that the trial court erred when it found that the wife was a resident of the marital residence when she installed the recording devices. Id. Though the wife did not sleep there, she continued to keep clothes and other personal items at the residence, paid part of the mortgage, received mail, and spent fairly significant time there. Thus, though the Court of Appeals acknowledged that evidence of the wife’s residence is disputed, it could not say that the trial court erred when it found that the wife was a resident of the marital home during the time she installed the video devices. Id.
Finally, the husband argued that the wife did not use the surveillance devices for a permissible purpose under the statute: security purposes, crime prevention or crime detection. Id. The Court of Appeals disagreed with the husband, agreeing with the trial court that the surveillance was used for crime detection. The Court found persuasive that the wife testified “she installed and used the video surveillance devices in an effort to discover and document any harm that [the husband] might visit upon the children.” Id. This would, in turn, help her obtain custody of the children.
Having disagreed with the husband on all of his arguments, the Court of Appeals affirmed the trial court’s denial of the husband’s motion to exclude the video evidence. The facts of this case are something to consider if you are thinking about videotaping your spouse, or you think you may be videotaped. Under this case, if the surveillance falls within the exception to the statute, it will likely be admitted as evidence in your divorce case.