B. S. H. v. J. J. H., WD

• Decision Date: 02 March 1981
• Docket Number: No. WD,WD
• Citation: 613 S.W.2d 453
• Parties: In the Matter of the Marriage of B. S. H., Respondent, v. J. J. H., Appellant. 31110.
• Court: Missouri Court of Appeals

Page 453

613 S.W.2d 453

In the Matter of the Marriage of B. S. H., Respondent, v. J. J. H., Appellant.

No. WD 31110.

Missouri Court of Appeals, Western District.

March 2, 1981.

Richard C. Thomas, Columbia, for appellant.

Darwin A. Hindman, Jr., Columbia, for respondent.

Steven G. Gladstone, Columbia, guardian ad litem.

Before WASSERSTROM, C. J., SHANGLER, DIXON, PRITCHARD, CLARK and MANFORD, JJ., and SWOFFORD, Senior Judge.

CLARK, Judge.

In this dissolution of marriage case, the issues contested were the paternity of one child, the custody of another and the financial obligation for their support. The trial court found both children to have been born of the marriage, placed both in the custody of the wife and awarded her an allowance payable by the husband for the children's support. The husband appeals.

Some details of the parties' marital experience were established without dispute. The marriage ceremony was solemnized September 14, 1974. The first child was born March 9, 1975, and a second was born September 1, 1976. From time to time during the brief period of the marriage, the parties separated and the husband left the home to live elsewhere, on occasion returning to live with his parents and, once, moving to the state of Texas. On the dates when each of the children was born, these separations had occurred and the husband was absent. The ultimate breakdown of the marriage, conceded to be irretrievable, brought about a final and permanent separation February 15, 1978, and, subsequently, this action filed by the wife for dissolution.

The acquaintanceship of the parties predated the marriage by some time, but they were intimate during a shorter interval, four months according to the wife and one month by the husband's recollection. Both agree, however, that the wife told the husband before they were married that she was already pregnant. The husband claims that the child was not and could not have been his but he does acknowledge that he married with the information as to his wife's condition, that the matter was discussed between them and he agreed to raise the child. According to the wife, her conception was the result of the pre-marital relation with the husband and the prospective birth of a child was the reason for entering into the marriage. The subject of the child's paternity was never mentioned within the child's hearing but the husband asserts that the wife frequently in times of dispute and discord told him the child was not his and named others who were or could have been the father.

The issues of custody, paternity and support contested at trial and here are interrelated. Although the husband professes affection for the older child, he has firmly and consistently denied that the child is his. He cannot, as a matter of consistency, claim any interest in the award of that child's custody. The husband does, however, contend that the wife is not a fit person to have custody, a fact determination which of necessity must bear on the decision for placement of both children. The custody award is therefore reviewed on the husband's first point of error with equal regard for the interests of both children.

The evidence here, in common with many cases where the custody of children is in issue, is sharply conflicting. The fitness of each parent to act as custodian is attacked or supported depending on the source of the testimony. While the court was obligated to accept some evidence on the subject and disbelieve other evidence, the fact is that neither of the contesting parties here could claim an exemplary record of conduct or character and each evidenced some immaturity. The trial court had no clear choice which would insure the future well being of the children, but was obligated to select from less than fully satisfactory alternatives.

The trial court occupies a superior position to evaluate fact questions because it has the parties before it and its decision is entitled to some deference on this account. Markham v. Markham, 429 S.W.2d 320, 323 (Mo.App.1968). In the review of a court tried dissolution case, the decree must be sustained unless it is not supported by substantial evidence or is against the weight of the evidence or is erroneous in application or declaration of the law. In re Marriage of Strelow, 581 S.W.2d 426, 429 (Mo.App.1979). The trial court's decision in awarding child custody should not be disturbed unless the reviewing court is firmly convinced that the welfare of the children requires some other disposition. In re Marriage of Hayden, 588 S.W.2d 165, 167 (Mo.App.1979); Johnson v. Johnson, 526 S.W.2d 33, 36 (Mo.App.1975).

We are unable to conclude here that the award of custody made by the trial court is not in accord with the evidence. More significantly, there has not been shown to be available any alternative custody arrangement which this court could order with any conviction that the welfare of the children would thereby be better served. On settled principles, we accept and affirm the custody disposition which the trial court ordered.

The husband next contends that the trial court erred in charging him with the financial obligation for contribution in support of the older child because evidence from blood grouping tests conclusively verified his claim that he was not the child's father. This evidence on which the husband now places substantial reliance was neither secured by him nor introduced by him at trial. That evidence was obtained by the guardian ad litem after testimony in the case in chief had been concluded and was offered by the guardian at a second adjourned hearing. Some procedural history of the case must be recounted to explain the origin of the blood test evidence and the limitations on the effect of the evidence which the facts of the case impose.

The guardian was appointed by the court sua sponte but the order was entered only five days before trial commenced. Apparently the appointment was prompted by the husband's responsive pleading filed nine months earlier disclaiming paternity of the one child. When the case was called, the guardian was not present in the courtroom and attorneys for the wife and husband expressed some surprise because neither was aware of the appointment. A brief recess was called for the purpose of securing the guardian's attendance. When the guardian did appear after the recess, he stated that he had learned of the appointment only on the previous day, he had not known the case was set for trial and he was unfamiliar with the facts.

Despite the obvious inability of the guardian to participate in any effective way, the court directed that the case proceed, apparently to accommodate out of town witnesses. The guardian was instructed to make his investigation later and inform the court if further evidence would be required. To the extent the guardian's limited information permitted, he participated in the trial by questioning the witnesses and the case was continued for an additional hearing depending on the results of the guardian's later investigation.

During a succeeding period of some two months, the guardian acquainted himself with the physical circumstances of the parties in their respective homes, interviewed friends and relatives and inquired into the condition of the children. He also proposed that the parties and the children be given blood tests to evaluate the husband's disclaimer of paternity. Finally, another hearing was conducted, principally for the purpose of allowing the guardian to interrogate the witnesses with his recently acquired knowledge of the case. It was at this hearing that the blood test evidence was offered by the guardian and received without objection.

Although the blood analysis was a procedure suggested by the guardian to resolve the paternity issue, neither the wife nor the husband made any objection and the tests were given on a voluntary and informal arrangement. The parties and the guardian were restricted by a lack of funds to pay for medical and laboratory services and to compensate any expert witness for testimony at trial. The blood test procedure was reduced to an uncertain and imprecise exercise divised to meet what was apparently perceived as the exigencies of the case.

At the subsequent hearing, the parties testified that each had gone to Woodland Hospital in Moberly at separate times to have blood drawn and each had taken one of the children for the same purpose. The witnesses had no knowledge of the test procedures, the identity of the medical or technical personnel at the hospital or the test results. The blood grouping analysis evidence consisted only of exhibits offered by the guardian on a stipulation not adequately set out in the record but apparently reflecting an agreement by counsel waiving source identification of the documents. Four exhibits bore the name of Woodland Hospital and purported to show the blood types of the husband, the wife, and each of the two children. An additional exhibit was an extract from a work titled Clinical Diagnosis By Laboratory Methods, a learned treatise which counsel agreed is recognized in the medical profession as authoritative in matters of blood grouping examinations.

Interpretation of the blood test results was not supplied by any expert witness. In the husband's view of the documentary evidence, however, the blood type grouping of the older child, when compared with the blood types which he and the wife are shown to have by the test results, demonstrates, according to the authoritative text, that he could not have fathered the child.

Limitations on the reliability of the blood test evidence are obvious, not alone because interpretation of the result was left for lay assessment. The critical test result documents bear no signature, they are not attested or certified, the name of an attending physician or laboratory technician does not appear and there is no method of determining from the record how the documents came...