O--- F--- L--- v. M--- R--- R---

• Decision Date: 30 December 1974
• Docket Number: F---,D,R---,L---,P,M---,R--,No. KCD,O---,KCD
• Parties: laintiff-Respondent, v.efendant-Appellant. 26679.
• Court: Missouri Court of Appeals

Page 113

518 S.W.2d 113

78 A.L.R.3d 825

O--- F--- L--- , Plaintiff-Respondent, v. M--- R--- R---, Defendant-Appellant.

No. KCD 26679.

Missouri Court of Appeals, Kansas City District.

Dec. 30, 1974.

Richard E. Duggan, Kansas City, for defendant-appellant.

Popham, Popham, Conway, Sweeny & Fremont, Thomas J. Conway, Kansas City, for plaintiff-respondent.

Before PRITCHARD, P.J., and SWOFFORD, and SOMERVILLE, JJ.

SOMERVILLE, Judge.

It is impossible to envisage the legal issues presented by this appeal without first being exposed to a mixture of sad and offensive facts and the unprecedented nature of the legal action in which they culminated.

On March 1, 1965, J--- R--- (now J--- L---), hereinafter referred to as the mother, who is not a party to this action, gave birth to a male child named T--- R--- , hereinafter referred to as the male child, and who, likewise, is not a party to this action. At the time of the male child's birth, the mother was lawfully wed to M--- R--- R--- , hereinafter referred to as the first husband, defendant below, and appellant in this court. The mother and the first husband were married on or about August 7, 1959. Approximately four years prior to the birth of the male child, a female child, whose interests are in no way involved in this litigation, was born of the marriage between the mother and the first husband.

On March 16, 1965, fifteen days after giving birth to the male child the mother filed a divorce action against the first husband, and, in her petition, among other things, alleged that there were two children born of the marriage between herself and her first husband, namely the male child and the female child heretofore referred to. In her divorce petition, the mother prayed for severance of the marriage between herself and her first husband, and so far as pertinent here, that she be awarded custody of the two minor children born of the marriage, and that the first husband be compelled to pay child support. The first husband by way of answer to the divorce petition admitted the allegation contained in the mother's divorce petition regarding the two children born of the marriage. On or about June 1, 1965, the court before whom the divorce petition was pending granted the mother a divorce as prayed for and awarded her custody of the male child and the female child heretofore referred to and ordered the first husband to pay the mother '$25.00 a week for the two children.'

On December 4, 1965, the mother married O--- F--- L---, hereinafter referred to as the second husband, plaintiff below, and respondent in this court.

On April 8, 1972, the second husband brought an action in the Circuit Court of Jackson County, Missouri, against the first husband, captioned, 'Petition for Declaratory Judgment', wherein the second husband alleged, (1) that in 1964, while married to another woman, he engaged in sexual intercourse with the mother who was at the time married to and the wife of the first husband, (2) that the male child was born on March 1, 1965, as the result of said adulterous union, (3) that the mother divorced the first husband on June 1, 1965, and subsequently married the second husband, and (4) that since his marriage to the mother he has at all times 'stated' that the male child 'is his natural son' and he has recognized the male child to be his 'natural son'. The second husband's petition concluded with a prayer for judgment 'declaring that he is the lawful and natural father' of the male child.

In answering the second husband's petition, the first husband admitted that a 'male child was born on March 1, 1965', that he 'was divorced' from the mother on June 1, 1965, but he stated he 'did not have knowledge of sexual intercourse' between the second husband and the mother, and he specifically denied 'each and every other allegation' contained in the second husband's petition. The first husband's answer concluded with an affirmative assertion that the second husband's cause of action was barred by 'the Doctrine of Laches and Collateral Estoppel'. Nowhere in his answer did the first husband affirmatively or positively assert that he was the natural father of the male child. Whether the lack of such an affirmative or positive assertion was the result of mere happenstance or design is relegated to the unknown for all time.

The issues joined by the second husband's petition and the first husband's answer were tried by the court, sitting without a jury, on January 19, 1973. The only evidence adduced was that on behalf of the second husband. It consisted of his sworn testimony and that of the mother and certain exhibits, more about which will be said later. The first husband did not testify, nor did he introduce any evidence whatsoever, either by way of witnesses or exhibits. Necessarily, he must and does rely on the testimony of the second husband and the mother, principally as elicited on cross-examination, to support his allegations of error on appeal.

In addition to certain background evidence already touched upon, the uncontradicted evidence of the second husband and the mother disclosed that they mutually engaged in sexual intercourse 'about once a week' starting in February or March of 1964 and continuing through the time the male child was conceived on or about the middle of Mary, 1964. The mother testified that from October or November of 1963 on she at no time had sexual intercourse with her first husband, nor did she have sexual intercourse with anyone other than the second husband. The mother affirmatively acknowledged that the male child was conceived as the result of her illicit relations with the second husband, and he, likewise, affirmatively acknowledged himself to be the father of the male child. The second husband even acknowledged to the parents of the mother, prior to the time she separated from her first husband, that he, the second husband, sired the expectant child the mother was carrying. The mother and the first husband separated a few days after the male child was born. After the mother obtained a divorce from the first husband, and the second husband obtained a divorce from his wife, the mother and second husband were married, said marriage occurring on December 4, 1965.

The mother has had continuous custody of both the male child and the female child ¹ born during her marriage to the first husband since her separation and divorce from the first husband. Both children have resided with the mother and the second husband since the latters' marriage. When the male child became three years of age, the first husband was given visitation rights with the child, which apparently included the right to keep him overnight. Starting approximately a year before the second husband filed the action here on appeal, and continuing up until such time as the action was filed, the male child complained when he returned from visits to the first husband that the first husband would hit him on the head. These complaints prompted the second husband to file the paternity action now before this court

Since the marriage between the mother and the second husband, the second husband has provided a home for the male child and held the male child out to people in general and to his business associates as his son, and has introduced the male child to them as his son. Five or six years prior to filing the paternity action the second husband named the male child as his heir in a trust he set up and made provision therein for the male child. Ever since the male child started attending school he has used the second husband's last name.

On cross-examination the second husband was questioned about waiting seven years to bring the paternity action. Summarized, his answer was that he was concerned that the mother might lose custody of the female child born of the marriage to the first husband if the true lineage of the male child was made a matter of public record. However, the physical abuse being heaped upon his son by the first husband turned the tide and he, the second husband, 'could not take it any more' and he concluded by saying '(i)t cuts your heart out to see somebody else take your son out of the front door every other Saturday, and I knew I had to make amends for that with the man upstairs, and I have tried to.' The second husband thereupon employed counsel and initiated the declaratory judgment action.

On cross-examination, the mother was questioned about the divorce petition she had filed against the first husband. The mother admitted that she had alleged in her petition that there were two children born of the marriage to her first husband. Her explanation for this allegation was that she was concerned for her daughter. She further admitted that when she was awarded a divorce she was granted custody of the two children and awarded child support of '$25.00 a week for the two children'. She testified that the $25.00 a week for the two children' came by checks through the mail but she had not cashed any of the checks 'for four years' and had offered to return the uncashed checks to the first husband. On redirect examination the mother testified that she had never been 'interested' in receiving any money for the male child from the first husband.

Exhibits 1 and 2 heretofore referred to, offered by the second husband, and received in evidence, may collectively be referred to as 'blood tests' of the mother, the male child, the first husband and the second husband, with accompanying expert medical opinions that in view of the different blood types possessed by the first husband and the male child, the first husband was scientifically excluded from being the natural father of the male child.

The evidence related above stands uncontradicted. It is also deemed appropriate to mention, for reasons hereinafter disclosed, that not one scintilla of evidence appears in the record that the second husband paid for the mother's divorce from the first husband, or that he...