J.L.P.(H.) v. D.J.P.

• Decision Date: 14 December 1982
• Docket Number: No. WD33116,WD33116
• Citation: 643 S.W.2d 865
• Parties: J.L.P.(H.), Petitioner-Respondent, v. D.J.P., Respondent-Appellant.
• Court: Missouri Court of Appeals

Page 865

643 S.W.2d 865

36 A.L.R.4th 986

J.L.P.(H.), Petitioner-Respondent, v. D.J.P., Respondent-Appellant.

No. WD33116.

Missouri Court of Appeals Western District.

Dec. 14, 1982.

David T. Greis, Kansas City, for respondent-appellant.

Buford L. Farrington, Independence, for petitioner-respondent.

Before SHANGLER, P.J., and PRITCHARD and DIXON, JJ.

DIXON, Judge.

The husband appeals from a trial court order specifying scheduled visitation rights of the father, denying the father overnight visitation privileges, and limiting the father's visitation rights by directing that visitation not be exercised by taking the child to a church at which a large proportion of the congregation are homosexuals or by taking the child to "gay activist social gatherings." The father, an avowed homosexual, appeals asserting a variety of errors centering primarily upon lack of evidentiary support and claimed constitutional violation.

The husband and wife were married in 1968. A child was born in 1969 and had not reached his twelfth birthday at the time of the hearing. At the hearing, the father testified that the original divorce granted in Johnson County, Kansas, restricted his visitation by denying him the right to have the child overnight and that he accepted that restriction out of fear of being denied visitation altogether.

Following the divorce, the father lived at various locations and on some occasions had overnight visitation with the child. Since the divorce, the father admitted to sexual relations with one woman and with two men whom the father characterized as "lovers," one for a period of a year and another for a period of eight months. He also admitted to homosexual relationships with ten to twelve other men since the divorce. Three or four of these latter individuals were introduced to the son at the father's home on the occasions of visitation. The father presently occupies an apartment jointly with another homosexual male, but denies any homosexual involvement with this person. The father advocates a homosexual lifestyle and has discussed with his son his homosexual behavior. He thinks it would be "desirable" for his son to be homosexual. The father has taken the child to a church which was described by its pastor as "a Christian church with a primary outreach for historical needs to the gay community." The pastor also indicates that over half of the church membership were homosexual persons. The father also presented the evidence of two psychologists whose testimony may be summarized by saying that they were of the opinion that the child suffered at the present time no psychological damage arising from his association with his father. Both of them testified that there are three theories of the causation of homosexuality: the theory of genetic causation, a theory that it is a form of sexual impairment, and the behavorists' theory that it is a learned response. Both of the witnesses opined that the sexual impairment theory was correct. According to that theory, the sexual preference of a child is determined at age four or five and no subsequent conditioning can change that preference once established. Both of the witnesses agreed that there is no proven theory of causation of homosexuality. Both of the witnesses asserted that most child molestation occurs between adult heterosexual males and female children, one of them going so far as to say that child molestation was approximately 95% heterosexual and that homosexual molestation is rare.

The mother testified at some length concerning the episodes of visitation since the divorce and her beliefs concerning the adverse effect upon the child of visitation with his father overnight. Significantly, she testified that the child's "bedwetting" has become more of a problem recently. She testified that on one occasion when the father took the child out of the state for a period of several days the time was spent in the company of another homosexual and his juvenile nephews. The boy was questioned by the court and was aware of the issue involved with respect to his father's behavior. He was aware his father's friends were mostly homosexuals, knowledge he had gained from his father. He was aware that the church he attended was a "gay" church. The boy has not told his friends of his father's sexual preference. The boy stated that his father had never been around any of his friends from school nor had his friends ever gone with him to visit his father.

Some additional background concerning the appeal requires mention. The trial court ordered the records sealed for the purpose of protecting the child's identity in view of the circumstances of the case. When the father's brief was filed, it was filed with the names of the parties and the child in full. An inquiry by media sources for access to the file prompted this court to enter an order continuing the trial court's order to preserve the anonymity of the child. The order required the parties to file pleadings in this cause designating the parties only by initial and this opinion follows that procedure. The parties remain under this court's order to preserve the anonymity of the child in these proceedings. Likewise, the portion of that order sealing the record on appeal is continued insofar as the records may contain references to the identity of the parties and the child. During the pendency of the appeal, a request was received from the Lambda Legal Defense and Education Funds, Inc., for leave to file a brief amicus curiae, which was denied.

The appellant father has filed a voluminous brief raising ten points with numerous subpoints. The appellant father's brief and oral argument indicate a desire on the father's part to convert this appeal into a wide ranging inquiry into the constitutional and marital rights of homosexual fathers. In view of the posture of this case and the evidence presented, it is unnecessary to address many of the issues which the father purports to raise on this appeal, nor is it necessary to discuss point by point the assertions made in the brief of the father.

The basic thrust of the father's argument rests upon the premise that the record in this case does not support the factual findings of the trial court and that, therefore, the trial court erred in placing restrictions upon the father's visitation with the child.

The father in his brief in three separate points makes a direct attack upon the findings of fact by the trial court. These "points" overlap and to some extent are not separate points. Paraphrasing these points and drawing upon the argument portion of the brief for explication, they may be summarized as follows.

The father argues, first, the trial court ignored the uncontradicted expert evidence of the psychologists. The argument further is that this rendered improper the trial court's findings that the father believes it to be in the best interests of the son to expose him to a homosexual environment, that the father hopes that the son will be a homosexual and thinks that desirable, that the father's purpose is to justify his homosexuality and encourage his son to become a homosexual. The father also argues that the trial court's characterization of the father's activities as "seductive in nature" and detrimental to the best interests of the child is refuted by this "expert" testimony.

Reviewing the evidence adduced and responding to the claim that the trial court ignored the psychological evidence presented, it is apparent that the court did not ignore the psychological evidence. Both the psychology "experts" testified that there was no concensus as to the cause of homosexuality. They both indicated that there is a theory of the causation of homosexuality which considers it to be linked in terms of causation to environmental influences or learned behavior, although both opined that they did not support that theory.

In considering this record, it must be understood that the psychologists did not testify to scientific facts generally accepted in the scientific community. They were espousing only their opinions upon theories of causation, which they both admitted were not subject to any demonstrable scientific proof.

The father recognizes the general principle that ordinarily expert testimony is not binding upon the trier of fact. Nonetheless, the father insists this record compels the court to accept the testimony of the psychologists. As authority for his proposition, the father cites Phillips v. Union Electric Company, 350 S.W.2d 432 (Mo.App.1961), and Kane v. St. Louis Refrigerator Transit Company, 83 S.W.2d 593 (Mo.App.1935). Both of these cases from the eastern district rely upon citations from C.J.S., Phillips citing 32 C.J.S. Evidence § 569 at p. 399, ¹ and Kane citing as support for the proposition 22 Corpus Juris, at 728-30.

Even a casual examination of the C.J.S. citation shows that the quoted portion of the text of the encyclopedia represents a minority view. No Missouri cases are offered to support the text relied upon except the bootstrapping citation of Kane which, of course, relied upon the text itself for its only authority. The great weight of authority, both in Missouri and elsewhere, is that opinions of experts are not binding upon the trier of fact, and that is the black letter statement of the law found in 32 C.J.S. Evidence § 569(1)(a)(b)(c) (1964), including many Missouri cases cited in support of the black letter statement at footnote 61. Typical of the Missouri authority on the issue is Baugh v. Life & Casualty Insurance Company of Tennessee, 307 S.W.2d 660, 665 (Mo.1957), where it was said that testimony of physicians would not be conclusive upon the jury, and the statement in Sunset Acres Motel, Inc. v. Jacobs, 336 S.W.2d 473, 484 (Mo.1960), that the weight of uncontradicted expert testimony was for the jury. There may be occasions in which expert witnesses testify to scientific facts which are so generally accepted in the scientific...