Custody Case Tip: Don't Bug Kid's Teddy Bear

By Todd Cooper
World-Herald
January 7, 2009

Turns out, Little Bear was nothing more than Big Brother.

An Omaha man has sued his ex-wife after she or someone on her behalf inserted an audio recorder into their 4-year-old daughter's teddy bear during the couple's custody battle.

According to the lawsuit, Dianna Divingnzzo or her father planted a listening device inside Little Bear in an effort to lay bare any secrets of Divingnzzo's ex-husband, William "Duke" Lewton.

The plan backfired, however, when the judge presiding over child custody proceedings refused to hear the recordings. Sarpy County District Judge David Arterburn noted that under Nebraska law, at least one person in a conversation must consent to a recording.

No one - not even the bear - consented in this case.

Now Lewton, 36, and several people recorded by the bear want Divingnzzo, her dad and her former attorneys to pay for invading their privacy.

"I just can't imagine the thought of someone taking that little bear's head off and implanting a device," Lewton said Tuesday. "It's . . . incomprehensible."

The device might appear to be ripped from the script of the 2000 movie comedy "Meet the Parents," but attorneys say custody battles have always been personal and sometimes vicious. Feuding spouses have long hired private detectives to try to uncover behaviors that would cause a judge to declare an estranged partner an unfit parent.

Lewton said his ex-wife did just that - had private detectives tail him for months, to the point of planting a GPS device on two of his vehicles.

Then there was his daughter's favorite bear - nothing more than a teddy bear's head with a blanket attached.

Lewton said he gave "Little Bear" to his daughter long ago. Little did he know that the miniature bear, which the child carried with her everywhere, was doing more than just staring at him with its beady eyes.

Lewton's attorney, John Kinney, said "the bear" recorded dozens of hours of visits from at least December 2007 through May 2008. Lewton said the recordings revealed nothing beyond the normal interactions between a dad and his daughter.

The Divingnzzos did not return calls seeking comment.

The recordings were discovered after Divingnzzo reported them to a therapist who was monitoring the child custody case. Divingnzzo's father transcribed hours of recordings - adding interpretation of various sounds.

"The level of emotion in custody cases often blinds people," Kinney said. "You combine it with modern technology, and it sort of becomes dangerous."

This one became invasive. Lewton's fiancee, neighbor, cousin and even some court-appointed workers who visited Lewton's home joined Lewton in the lawsuit - alleging that their privacy was violated.

In addition to suing Divingnzzo and her dad, Lewton sued Divingnzzo's former attorneys -William Bianco and Christopher Perrone of Papillion.

Perrone said Tuesday that he and Bianco never advised Divingnzzo to record her ex-husband, nor do they advocate that clients hire private detectives.

In fact, said Perrone, a former Sarpy County prosecutor, they withdrew from representing Divingnzzo shortly after the recordings were discovered.

A transcript of a June hearing over the tapes reinforces the attorneys' lack of knowledge about them. But it also shows that Bianco argued that the tapes could be used in the custody case.

According to the transcript, Bianco acknowledged that he hadn't determined whether his client's actions were legal.

But because this was a civil dispute, Bianco argued that the tapes are "relevant and should be admissible."

"I believe the tape recording of Mr. Lewton by my client and her father provides a window that professionals and this court can use to see where this child should be placed," Bianco said.

Arterburn, the judge, blanched at the thought.

He noted at the hearing that it is illegal for anyone to even review the results of an illegally obtained recording. So Arterburn pushed aside any transcripts of the tapes - saying that Divingnzzo's actions could have constituted a felony.

"The court cannot be a party to or reward what may be a felony offense," he ruled.

Divingnzzo has not been charged in criminal court.