Sheppard v. Reid

198 Ga. App. 703 (1991)

402 S.E.2d 793

SHEPPARD v. REID.

A90A1862.

Court of Appeals of Georgia.

Decided February 25, 1991.

*704 Charles R. Sheppard, for appellant.

O. L. Collins, for appellee.

BANKE, Presiding Judge.

The appellant instituted a paternity action against the appellee, seeking to have him declared the father of her two children. The case was tried before a jury, which returned a verdict in favor of the appellee. The case is before us pursuant to our grant of the appellant's application for a discretionary appeal from the denial of her motion for new trial. The sole issue on appeal is whether the trial court erred in prohibiting the appellant from using a tape recording of a conversation between herself and the appellee, made while the two of them were alone in a car, to impeach the latter's testimony that he was not the father of the children. Held:

In concluding that the recording could not be used for impeachment purposes, the trial court relied on Division 3 of Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985), wherein the Georgia Supreme Court held that a wife's private telephone conversations with a third person, recorded by her husband without her knowledge or consent in violation of OCGA § 16-11-62 (1), could not be used against her in a divorce trial for the purpose of impeachment. See OCGA § 16-11-67. However, that case has no applicability to the present situation, since OCGA § 16-11-62 does not prohibit the recording of a conversation by one of the actual parties thereto. See Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977); Evans v. State, 252 Ga. 312, 318 (314 SE2d 421) (1984). Accordingly, we hold that the trial court erred in excluding the tape recording.

Judgment reversed. Birdsong, P. J., and Cooper, J., concur.