Video surveillance upheld in Georgia divorce case by Georgia Court of Appeals on July 13, 2012, in decision of Rutter v. Rutter, case No. A12A0661

Wife installed video surveillance equipment in marital residence.

Husband and Wife were in the midst of divorce and Wife surreptitiously installed video surveillance devices in the marital residence.   She was hoping to capture evidence of husband’s criminal activity that would help her gain custody of the children.   Husband appealed the trial court’s refusal to exclude evidence from the video surveillance.  On appeal, Husband argued that the Wife’s video surveillance violates 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.  Evidence obtained in violation of OCGA 16-11-62 is usually not admissible in court.

Georgia law OCGA 16-11-62 makes it unlawful to conduct video surveillance of another in a private place without his consent.

But there are exceptions to the statute that permit video surveillance within your own residence for security purposes, crime prevention, or crime detection.  The court found that Wife installed the video surveillance devices for crime detection to help her in her divorce and custody case.  The appeals court agreed.

What constitutes your own residence during divorce?

Husband argued that Wife was not living at the residence so it was not her residence for purposes of the statutory exception.  However, during the time of the surveillance, she kept clothes and other personal items at the marital residence, paid part of the mortgage, received some mail there, and spent part of every other day there doing things like cooking, eating, bathing, and washing clothes.  The trial court concluded that it was her residence for purposes of the statute, and the appeals court did not overrule the trial court.  (In order to overrule the trial court, the appeals court would need to find that the trial court clearly made an error.  It is possible that another trial judge might reach a different conclusion on similar facts).  It is possible for a person to have more than one residence.  The Georgia court has recognized that a person “can maintain a residence by keeping personal items there, paying bills relating to the home, receiving mail at its address, and returning to the home frequently, even though she does not usually stay overnight at the home.  State Farm Fire & Cas. Co. v. Goodman, 259 Ga.App. 62, 66(3)(a), 576 S.E.2d 49 (2002).”

Best to keep all of the evidence – just in case.

Husband on appeal also argued that Wife failed to preserve, or failed to produce, all of the video surveillance recordings made in the home.  The argument was that the video surveillance evidence should be excluded under a theory called spoliation of evidence.  The appeals court did not consider this argument because apparently it was not raised at trial or ruled on by the trial court.   It would be a good practice to keep all of the video recordings made in the home, even those with no relevant information, to avoid such a challenge.

Contact Hindson & Melton LLC for your Georgia custody case.
Karen S. Hindson – July 19, 2012