Posted on 02/25/2013 at 09:53 AM by Mary Zambreno
In Huyser v. Lynch, 2012 WL 6193387 (Iowa App. Dec. 12, 2012), the Iowa Court of Appeals upheld a jury's $155,000 slander award ($55,000 compensatory, $100,000 punitive) against a biological father for derogatory comments the father made to his 11-year-old daughter about the child's mother.
In tape recorded conversations between the two, the father informed the 11-year-old that her mother was a drunk, was legally insane from prior drug use, and was the victim of incest and sexual abuse at the hands of the child's maternal grandfather. In upholding the jury's verdict, the court agreed that the statements were slanderous per se in that they attacked the mother's integrity and moral character. Further, and because the mother testified to missing work, lost wages, mental anguish and the deterioration of her relationship with the child, the court found the jury's damages award was supported by substantial evidence. Interestingly, no details were provided about the circumstances which led to the tape recording of the conversations between daughter and father.
Generally however, under Iowa's electronic and mechanical eavesdropping statute Iowa Code § 727.8 it is not illegal for someone openly present and participating in or listening to a telephone conversation to record that conversation without the consent of the other party. So who did the tape recording? It was unlikely to be the father as he was the one making the slanderous remarks against the child's mother. Was it the mother perhaps listening in on the conversation, unbeknownst to the father? Unlikely, since the statute requires that party to be openly present. The only other openly present participant to the phone conversation would have been the 11-year-old girl.
Ultimately, the obvious lesson to be drawn from Huyser is that bad-mouthing your child's other parent may come with a hefty price tag, especially if those conversations will later be played before a jury. Not only that but most parenting plans require that each party refrain from bad-mouthing the other party to or in the presence of the child because doing so may be grounds for a modification of custody on the basis that the bad-mouthing parent is not fostering the parent-child relationship between the child and the other party.
An additional interesting but unresolved part of the decision pertained to the mother's attempt to bring a claim for child endangerment, alleging that the father's admitted drug use caused marijuana to enter the daughter's system. The trial court ruled that child endangerment is not a valid tort theory and therefore Iowa's criminal child endangerment statute does not provide plaintiffs with a civil cause of action. Noting that civil causes of action, "can, in certain circumstances, be based on violations of criminal statutes," the court of appeals was nonetheless not called upon to resolve the issue as the mother apparently did not contest the trial court's dismissal of her child endangerment claim.
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- Mary Zambreno
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