ONLY IN THE WORLD-HERALD
First, Little Bear became Big Brother as an Omaha-area woman inserted an electronic device into her daughter's favorite stuffed animal to record her ex-husband.
Now, Little Bear has become Big Burden as a judge has ordered the woman and her father to pay a total of $120,000 to six people who were illegally recorded.
In a civil judgment, U.S. Magistrate Judge F.A. Gossett III has ruled that Dianna Divingnzzo unlawfully recorded ex-husband William “Duke” Lewton by inserting the device into her then-4-year-old daughter's toy bear.
He also found that Divingnzzo's father, Sam, improperly transcribed conversations from Little Bear — and that Divingnzzo's former attorney, William Bianco, improperly distributed copies of the recordings.
Gossett ordered Divingnzzo and her father to pay $10,000 each to everyone who could be identified on the recording, including Lewton, his then-fiancee, a neighbor, a cousin and some court-appointed workers.
The judge did not order Bianco to pay damages, though he said he could see no “justification” for the attorney providing copies of the illegal recordings to parties in the couple's child-custody case.
“The uncontroverted evidence shows that the bugging of Little Bear accomplished much more than simply recording oral communications to which (the child) was a party,” Gossett wrote. “Rather, the device was intentionally designed to record absolutely everything that transpired in the presence of the toy.”
Plain and simple, Gossett said, that is illegal. Under state and federal law, at least one person must consent to the recording of a conversation.
The judge rejected Divingnzzo's contention that she bugged the bear in the best interests of her daughter.
“There's a measure of relief to know that a little bit of justice has been served,” said Lewton, who shares custody of the couple's daughter, now 7. “At the same time, it never seems to end. You never know what's coming next.”
Though the device was novel, attorneys say, the battle was anything but.
When it comes to child custody cases, attorneys say, parents sometimes resort to irrational means to try to protect their children. At times, that involves parents spying on each other or hiring private detectives to do surveillance and dig through trash.
In this case, Divingnzzo hired private detectives to tail Lewton for months — to the point of planting GPS devices on two of his vehicles.
Then in December 2007, she went a step further. She admitted in depositions that she removed stitches from Little Bear, planted the listening device in it and stitched the toy back up.
She then insisted to several people that the girl couldn't go anywhere without Little Bear. Ironically, Lewton had purchased the toy for his daughter.
In time, Little Bear recorded dozens of conversations involving Lewton, the daughter, a cousin, a neighbor, an office manager and court workers overseeing the child-custody case.
Divingnzzo's father transcribed some of the recordings — even adding his own interpretations of sounds that could be heard on the tape.
In time, Divingnzzo presented the CDs and transcripts of the conversations to Bianco, her then-attorney in the child-custody case.
Bianco made copies of the CDs and transcripts and supplied them to the judge, attorneys and therapists involved in the child-custody case. Bianco said he did so as part of his ethical duty to provide discovery materials to everyone in the case.
The judge dismissed the lawsuit against Bianco's partner, Christopher Perrone, ruling that Perrone had little involvement in the case.
Once the illegal recordings were discovered, Lewton went to Omaha attorney John Kinney, who filed the federal lawsuit.
“In these child-custody cases, people sometimes lose their grip on reality and do things that they would otherwise never do,” Kinney said. “But this one is as bad as I've ever seen. It's just sort of sick and twisted.”
After the recordings were deemed inadmissible in the child-custody case, the case took another twist.
Divingnzzo said she took the small recording device out to her driveway — and destroyed it with a sledgehammer. She and her father both said they got rid of the computers that housed the recordings.
Divingnzzo's attorney, Steve Lefler, said his client is “very emotionally intense” about protecting her daughter.
“You see good people make choices that they believe with every fiber of their being is the right choice to protect their kids,” Lefler said. “Months or even years later, when the emotions aren't as high, they might re-evaluate whether it was truly necessary.”
Divingnzzo testified that she purchased the recording device and placed it inside her child's toy because she “was scared for the health and welfare” of her daughter.
Kinney called Divingnzzo's concerns baseless — and part of Divingnzzo's “scorched earth” attempts to undermine Lewton's parental rights. Kinney said the six people awarded damages may have further recourse to file invasion of privacy claims in state court.
The biggest concern in all of this, Kinney said, is the little girl. The second-grader has had numerous therapists.
“It's gone on for years,” Kinney said, “and it shows no signs of letting up.
“It hasn't been easy for (Lewton), but this little girl has to be the one who is suffering the most.”
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