IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

November 8, 2010 Session

CHRIS LAWRENCE v. LEIGH ANN LAWRENCE

Appeal from the Circuit Court for Knox County

No. 1-297-08 Dale C. Workman, Judge

No. E2010-00395–COA-R3-CV - FILED NOVEMBER 29, 2010

Leigh Ann Lawrence (“Mother”) secretly tape recorded her 2 1/2-year-old daughter’s

telephone conversation with the child’s father, Chris Lawrence (“Father”), during the course

of a divorce and custody dispute. After the divorce was concluded, Father filed a complaint

against Mother seeking damages for, among other things, wiretapping in violation of Tenn.

Code Ann. §39-13-601 (2006). Father filed a motion for partial summary judgment which

the trial court denied upon finding that “[n]o set of facts would create liability under §39-13-

601 et seq. for [Mother’s] interception of [Father’s] communication with his daughter.” The

court then entered partial summary judgment in favor of Mother and certified the judgment

as final. Father appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court

Affirmed; Case Remanded

CHARLES D. SUSANO,JR., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and D. MICHAEL SWINEY, J., joined.

W. Andrew Fox, Knoxville, Tennessee, for the appellant, Chris Lawrence.

R. Deno Cole, Knoxville, Tennessee, for the appellee, Leigh Ann Lawrence.

OPINION

I.

The parties agree that the following facts are undisputed:

[Mother] secretly recorded a phone conversation between

[Father] and his daughter.
[Mother’s] recording actions were intentional.

[Mother’s] recording was made without [Father’s] knowledge

or consent.

[Mother] was not a party to the conversation between [Father]

and his daughter that [Mother] recorded.

[Mother] recorded the conversation sometime in late May or

early June of 2007.

The parties’ child was approximately 2 1/2 years old at the time

of the recording, and had no capacity to provide consent to the

recording of the conversation between the child and [Father].

Regardless of whether the parties’ child had the capacity to

provide consent, the child had no knowledge of the recording

device, and to make the recording, [Mother] stationed herself at

a phone other than the phone being used by the parties’ daughter

to speak with [Father], to not alert the child to the fact that

[Mother] has holding a tape recorder, because the child would

have wanted to sing into the tape recorder or play with it.

[Mother] disclosed the recording to a third party, a psychologist

. . . who was conducting a custody evaluation in connection with

the parties’ divorce.

The parties were going through a divorce proceeding in 2007. 

The above facts are taken verbatim from Father’s “[Tenn. R. Civ. P.] 56.03 Statement of

Material Facts.” Mother filed her own statement of facts which the parties have addressed

in the following stipulation filed in this Court:

[Father] filed a Motion for Partial Summary Judgment on May

29, 2009.

[Mother] waived the 30-day provision under TRCP 56, to allow

[Father’s] motion to be heard on June 26, 2009.

The trial court entertained [Father’s] motion on June 26, 2009.

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The trial court made its pronouncement relating to [Father’s]

motion on June 26, 2009.

[Mother] filed her Motion for Partial Summary Judgment on

June 29, 2009.

The trial court has never entertained a hearing on [Mother’s]

motion; however the parties stipulated, pursuant to the Order

entered February 1, 2010 . . . , that [Mother’s] Motion for Partial

Summary Judgment should be granted, in light of the trial

court’s findings that [Father’s] invasion of privacy claim was

non-justiciable.

[Mother] stated “Additional Material Facts” in her June 22,

2009 response to [Father’s] . . . Statement of Material Facts, in

order to raise the defense of the vicarious consent doctrine and

create a question of fact as to whether she had a good faith,

objectively reasonable basis for believing it was necessary and

in the best interests of the parties’ minor child to consent on

behalf of her to the taping of a conversation with [Father] and

the minor child.

The parties stipulate that these Additional Material Fact

statements sworn to by [Mother], as part of [Mother’s] Motion

for Partial Summary Judgment, were not operative in the

granting of [Mother’s] Motion for Partial Summary Judgment.

The parties stipulate that if the court construes the law in such

a way that the Additional Material Fact statements sworn to by

[Mother] would become operative, then the case should be

returned to the trial court to allow [Father] an opportunity to

demonstrate that a genuine issue of material fact exists with

respect to these statements.

The trial court stated its reasons for granting partial summary judgment in favor of

Mother as follows:

The Tennessee wiretapping act found at §39-13-601 et seq. does

not abrogate a parent’s constitutionally protected common law

right and duty to protect the welfare of his or her child. This act

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is overbroad in its application to the set of circumstances

involving parents and their children’s telephone conversations.

Therefore, this court finds that a parent has an unrestricted right

to vicariously consent to the interception and recording of any

phone conversation between a child and any other person,

including another parent.

The parties agree that the Court’s ruling renders Count 1 of

[Father’s] Complaint non-justiciable. No set of facts would

create liability under § 39-13-601 et seq. for [Mother’s]

interception of [Father’s] communication with his daughter.

Therefore [Mother’s] Motion for Partial Summary Judgment,

filed on June 29, 2009, should be granted.

(Paragraph numbering omitted.) As we have stated, the trial court certified the judgment as

final pursuant to Tenn. R. Civ. P. 54.02.

1

II.

Father has appealed. The single issue he raises is

[w]hether the Trial Court . . . erred by denying summary

judgment to [Father] and granting summary judgment to

[Mother], when he found that no set of facts would create

liability under the Tennessee wiretapping statute, TCA § 39-13-

601et seq., for [Mother’s] actions of eavesdropping and taping

The pertinent text of Rule 54.02 is as follows: 1

When more than one claim for relief is present in an action, whether as a

claim, counterclaim, cross-claim, or third party claim, or when multiple

parties are involved, the Court, whether at law or in equity, may direct the

entry of a final judgment as to one or more but fewer than all of the claims

or parties only upon an express determination that there is no just reason

for delay and upon an express direction for the entry of judgment. 

From statements in the briefs, it appears that the other counts in the complaint were non-suited. However,

we have not found an order of dismissal in the record nor do we see an order of dismissal listed in the docket

sheet that is part of the record. Therefore, we rely on the order of certification to provide finality to the

judgment. 

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[Father’s] phone conversation with their 2 1/2-year-old

daughter.

III.

We are called upon to construe the term “consent” as it is used in Tenn. Code Ann.

§ 39-13-601 to determine whether Mother had an “unrestricted right to vicariously consent”

to the interception of her daughter’s telephone conversation. Issues of statutory construction

are issues of law, which we review de novo without a presumption of correctness as to the

trial court’ construction. Leab v. S & H Mining Co., 76 S.W.3d 344, 348 (Tenn.2002). A

trial court’s determination that no set of facts can be proven which will afford relief is

equivalent to dismissal for failure to state a claim and is also reviewed de novo. Trau-Med

of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 -697 (Tenn. 2002).

IV.

Before we look at the exact statutory language at issue, it will be helpful to have some

context for the language we will be examining; Tenn. Code Ann. § 39-13-601 identifies

prohibited conduct, § 602 sets forth the criminal penalty for the prohibited conduct, and §

603 provides a private right of action to “any aggrieved person whose wire, oral or electronic

communication isintentionally intercepted, disclosed or used in violation of § 39-13-601 . . .”

The pertinent part of § 39-13-601 reads as follows:

(a)(1) Except as otherwise specifically provided in §§ 39-13-601

– 39-13-603 . . . a person commits an offense who:

(A) Intentionally intercepts, endeavors to intercept, or procures

any other person to intercept or endeavor to intercept, any wire,

oral, or electronic communication;

* * *

(C) Intentionally discloses, or endeavorsto disclose, to any other

person the contents of any wire, oral or electronic

communication, knowing or having reason to know that the

information was obtained through the interception of a wire,

oral, or electronic communication in violation of this subsection

(a);

* * *

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(2) A violation of subdivision (a)(1) shall be punished as

provided in § 39-13-602 and shall be subject to suit as provided

in § 39-13-603.

(b) . . . .

* * *

(5) It is lawful under §§ 39-13-601 – 39-13-603 and title 40,

chapter 6, part 3 for a person not acting under color of law to

intercept a wire, oral, or electronic communication, where the

person is a party to the communication or where one of the

parties to the communication has given prior consent to the

interception, unless the communication is intercepted for the

purpose of committing any criminal or tortious act in violation

of the constitution or laws of the state of Tennessee.

* * *

(Emphasis added.) The word “consent” is not defined in Tenn. Code Ann. § 39-13-601.

The parties agree that this is an issue of first impression in Tennessee. The lack of a

definition and the obvious inability of a 2 1/2-year-old child to consent to a phone call or the

recording of same convinces us that the statute is ambiguous and therefore subject to

interpretation. See State v. Spencer, 737 N.W.2d 124, 129 (Iowa 2007)(“Iowa’s legislative

policy ordinarily requires a parent’s or guardian’s input. With this in mind, we find . . . the

word “consent” as used in [Iowa’s wiretapping statute] is ambiguous when applied to

minors.”). We have a duty to construe the term in such a way to avoid any constitutional

conflict if it is susceptible to such a construction. Jordan v. Knox County, 213 S.W.3d 751,

780 (Tenn. 2007).

The parties agree that parents have a fundamental constitutional right to make

decisions concerning the care, custody and control of their children. See Hawk v. Hawk, 855

S.W.2d 573, 577-79 (Tenn. 1993). In fact, the right of a parent to make decisions for a child

without state interference is bounded only by “the state’s authority as parens patriae . . . to

prevent serious harm to a child.” Id. at 580. The Tennessee Supreme Court has held that

[t]he relations which exist between parent and child are sacred

ones. . . . The right to the society of the child exists in its

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parents; the right to rear it, to its custody, to its tutorage, the

shaping of its destiny, and all of the consequences that naturally

follow from the relationship are inherently in the natural parents.

. . .

Hawk, 855 S.W.2d at 578 (quoting In re Knott, 138 Tenn. 349, 355, 197 S.W. 1097, 1098

(1917)). A parent has a right to “childrearing autonomy” unless and until a showing is made

of “a substantial danger of harm to the child.” Id. at 579.

It is readily apparent to us that “childrearing autonomy” encompasses control of a 2

1/2-year-old child’s access to the telephone, including to whom the child speaks and when

the child speaks and under what conditions the child speaks. We are also inclined to agree

with the trial court that as to a 2 1/2-year-old, this right is “unrestricted.” We are not, by this

opinion, painting a bright line as to age. See Cardwell v. Bechtol, 724 S.W.2d 739, 744-45

(Tenn. 1987)(recognizing “varying degrees of maturity” and that normally a child under age

seven has no capacity to consent). Since 2 1/2 is obviously an age at which a child is too

young to give consent, we see no need to determine a bright line rule in this case.

It is true, as Father argues, that divorce proceedings necessarily interject the

government into the realm of “the parents’ constitutionally protected fundamental liberty

interest in the care and custody of their children.” Tuetken v. Tuetken, 320 S.W.3d 262, 272

(Tenn. 2010)(quoting Lee v. Lee, 66 S.W.3d 837, 847 (Ten. Ct. App. 2001)). Father

therefore argues that the parental bill of rights codified at Tenn. Code Ann. § 36-6-101(a)(3)

(Supp. 2009) reflects a policy decision by the legislature that limits Mother’s rights to make

decisions for the child. Father relies specifically on the “right to unimpeded telephone

conversations with the child at least twice a week at reasonable times and for reasonable

durations.” Id. We note that the divorce court retains the ability to deny the listed rights

“when the court finds it not to be in the best interests of the affected child.” Id.

We believe Father focuses on the wrong question. The question is not whether the

court with divorce jurisdiction can allocate rights between litigating parents. Clearly it can.

It can enforce its decrees in any number of ways, including contempt and sanctions. See

Hannahan v. Hannahan, 247 S.W.3d 625, 628 (Tenn. Ct. App. 2007)(“Husband was

obligated to comply with the terms of the April 5, 2006 order which he signed, and we find

no error in the trial court's decree holding him in contempt for his failure to do so.”); see also

Tenn. R. Civ. P. 69.

The pertinent question in this case is whether the legislature intended to subject a

parent to criminal penalties and money damages for eavesdropping, from another telephone,

on a 2 1/2-year-old child’s telephone conversation without the child’s knowledge. For the

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reasons we have already identified, we do not believe the legislature intended to invade the

parent-child relationship. Further, we do not believe that the legislature intended to impose

criminal penalties and money damages with respect to a telephone conversation between a

parent and a 2 1/2-year-old child during the pendency of a divorce proceeding. Accordingly,

we hold that, as a matter of law, Mother had the right to consent, as that term is used in Tenn.

Code Ann. § 39-13-601, vicariously to intercepting, recording and disclosing the child’s

conversation with Father.

Our holding is in accord with the result produced under a variety of tests in other

jurisdictions. The leading case under the federal wiretapping statute is Pollock v. Pollock,

154 F.3d 601 (6th Cir. 1998). In Pollock, a mother recorded her 14-year-old daughter’s

conversation with her stepmother. Id. at 604. The court recognized that several other

federal circuits had held that parental wiretapping without the consent of a minor child did

not violate the federal law because it was done from an extension phone as part of “the

ordinary course of business” of raising children. Id. at 607. The Sixth Circuit could not

follow that same path because it had, in another case, rejected the proposition that recording

from an extension phone was part of the “ordinary course of business.” Id. Instead, the court

held that “as long as the 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 behalf of his or her minor

child to the taping of telephone conversations, the guardian may vicariously consent on

behalf of the child to the recording.” Id. at 610. The court adopted the objective test because

of concern that a parent might abuse the doctrine of vicarious consent by falsely claiming

to act in the best interest of the child. Also, the court rejected the idea of “limit[ing] the

application of the doctrine to children of a certain age,” but recognized the greatest need for

vicarious consent is “in the case of children who are very young.” Id.

A recent state case that took a broad look at the law in various jurisdictions and

allowed parental recording of a child’s conversation is Spencer, 737 N.W.2d 124. Spencer

involved the criminal prosecution of a teacher for sexual exploitation of his 13-year-old

female student. Part of the evidence against him was a tape recording the student’s father

had made without the child’s knowledge. The case came before Iowa’s Supreme Court on

appeal from the criminal court’s suppression of the evidence as a violation of Iowa’s

wiretapping law. Id. at 126. The Supreme Court, after surveying the cases from other

jurisdictions, reversed the suppression and held that the father had the ability to vicariously

consent for the child. Id. at 132.

Although the Spencer Court imposed some restrictions on the ability to vicariously

consent that we have not imposed by our holding, its analysis is consistent with our result in

several important respects. First, it recognized that “[s]ociety’s concern for minors may be

constitutionally reflected in . . . statutes to account for: (1) minors’ peculiar vulnerabilities

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and their need for concern, sympathy, and paternal attention; (2) minors’ inability to make

sound judgments about their own conduct; and (3) our deference to the guiding role of

parents.” Id. at 132. We agree. Second, it recognized “the fundamental right of parents to

make decisions concerning the care, custody, and control of their children.” Id. We have

articulated that same right under the Tennessee Constitution. Third, it recognized that “the

minor’s age . . . is also an important factor in considering whether a parent or guardian can

vicariously consent for the minor child.” Id. at 131. We believe that in the case of a 2 1/2-

year-old, the right to vicariously consent exists as a matter of law.

V.

To the extent that non-Tennessee cases cited by us go beyond our holding in this case,

we do not find it necessary to state our approval or disapproval of those portions of the other

jurisdictions’ holdings that go beyond our own.

VI.

The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,

Chris Lawrence. This case is remanded, pursuant to applicable law, for collection of costs

assessed by the trial court.

_______________________________

CHARLES D. SUSANO, JR., JUDGE

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