Ex’s Rights not Violated by Cellphone TRO

(CN) - A restraining order preventing a woman's ex-husband from disseminating sensitive information downloaded from her cell phones does not violate the husband's constitutional rights, a California appellate court ruled.

Keri Evilsizor used two cell phones during her marriage to Joseph Sweeney -- one for the legal side of her business and one for the management side, according to court documents. Sweeney claims he had regular access to both phones and that the devices were not password-protected.

Evilsizor's job was at her father's company.

Shortly after Evilsizor gave birth to the couple's daughter, Sweeney became concerned that he wasn't the child's biological father after he read a text message on one of the phones that led him to believe that Evilsizor had received fertility treatments without his knowledge.

The discovery prompted Sweeney to download the contents of both of his wife's phones using software that made it easier to read the information, the opinion says.

The contents included "tens of thousands of text messages" as well as information from the "notes" section of Evilsizor's iPhone, which the opinion says she used as a diary.

After going through all of the information, Sweeney confronted his wife "with information he had learned from her text messages" and then went to Evilsizor's parents' home and "disclosed private and sensitive information about Evilsizor to her father," the opinion states.

Later that month, the couple began divorce proceedings, which the trial court characterized as a "highly contentious case."

According to the opinion, one of the disputes had to do with child and spousal support, in which Evilsizor argued that her income had decreased because, after Sweeney had revealed the information at issue to her father, her father had fired her from her job.

Sweeney contended by alleging that Evilsizor had colluded with her parents to falsely make it appear that she had been fired, the opinion says.

The opinion also says that Sweeney threatened to reveal certain of the phones' information to the IRS.

In court, Evilsizor testified that the ordeal had been "incredibly difficult to deal with" and had caused her "sleepless nights," and she said that she had suffered shock and embarrassment and feared for her safety because of Sweeney's disclosure.

She sought a permanent restraining order, which the trial court denied without a hearing after finding that the Domestic Violence Prevention Act (DVPA) did not cover situations in which there was no physical harm alleged.

The appellate court reversed this decision, finding that, "Although a lack of past physical abuse may be considered by a trial court in considering a protective order, the DVPA's

definition of abuse 'is not confined to physical abuse but specifies a multitude of

behaviors which does not involve any physical injury or assaultive acts.'"

The appellate court also rejected Sweeney's claims that Evilsizor's seeking of court-ordered prevention of further dissemination of her information violated his First Amendment right to free speech, since the conduct constituted abuse.

Neither side could be reached for comment.

Sweeney represented himself in court. Evilsizor's counsel was Ronald Peck, with Schenone and Peck in Hayward, Calif.

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