J.L.S. v. D.K.S., s. 68859

• Decision Date: 11 March 1997
• Docket Number: Nos. 68859,68874,s. 68859
• Citation: 943 S.W.2d 766
• Parties: J.L.S., Appellant/Cross-Respondent, v. D.K.S., n/k/a S.D.S., Respondent/Cross-Appellant.
• Court: Missouri Court of Appeals

Page 766

943 S.W.2d 766

J.L.S., Appellant/Cross-Respondent, v. D.K.S., n/k/a S.D.S., Respondent/Cross-Appellant.

Nos. 68859, 68874.

Missouri Court of Appeals,

Eastern District,

Division Four.

March 11, 1997.

Motion for Rehearing and/or Transfer to

Supreme Court Denied May 1, 1997.

Susan M. Hais, James P. Carmody, Clayton, for Appellant.

Elizabeth Harris Christmas, Brentwood, for Respondent.

SIMON, Judge.

J.L.S. (mother) appeals and D.K.S. n/k/a S.D.S. (father) cross-appeals from a decree of dissolution of marriage entered by the Circuit Court of St. Charles County.

On appeal mother contends that the trial court erred in that: (1) the visitation provisions of the trial court's decree are in contravention of the mandatory language of § 452.400.2 RSMo 1994 (hereinafter all references are to RSMo 1994 unless otherwise indicated) because the decree arbitrarily removes its restrictions on father's visitation on a specific date in the future without requiring a hearing or showing that father is rehabilitated; (2) there is no substantial evidence to support the visitation provisions of the decree in that a) the commencement of unsupervised visitation upon the expiration of one year is a prospective attempt to modify a final judgment without procedures for the court to determine if it is in the best interest of the minor children and b) the counseling provisions of the decree are unduly vague and grossly inadequate to serve the purposes of preparing the minor children for visitation with father at some time in the future; and (3) the award of joint legal custody is not in the best interest of the children because it is unsupported by substantial evidence in that the overwhelming evidence is that the parties now do not share any commonality of beliefs regarding the raising of the minor children.

In his cross-appeal, father contends that the trial court's decree stating that father will not cohabit with other transsexuals or sleep with another female, bears no relationship to the best interest and welfare of the minor children, violates his constitutional rights and is an undue hardship on father. We affirm in part, reverse in part and reverse and remand in part.

The decree must be affirmed if it is supported by substantial evidence, it is not against the weight of the evidence, and it neither erroneously declares nor applies the law. Carter v. Carter, 901 S.W.2d 906, 909[1-3] (Mo.App. E.D.1995). We must accept as true the evidence and permissible inferences therefrom in the light most favorable to the decree and disregard all contrary evidence and inferences. Id. Where there is a conflict in testimony, we defer to the trial court's determination of the credibility of the witnesses. Id.

Certain facts are undisputed. Mother and father were married on March 19, 1983 and two sons were born of the marriage. The oldest child was eight at the time of trial and the youngest was five.

Circumstances, occurring before and during the marriage, culminated in father having male to female "sex-reassignment" surgery. Father told mother of a few instances of cross-dressing he had prior to the marriage, but assured her that they were resolved. However, throughout the marriage, father secretly struggled with urges to cross-dress.

In June 1991, the parties were living in Clinton, Maryland. The marriage was strained at this time. Mother brought the two children to Missouri to visit her family. When she returned to Maryland, father told her he had seen a social worker about his problems. The parties saw a series of counselors and psychologists. Father requested a separation for one year while he participated in a "Real Life Test," during which he would live as a woman "24 hours a day." Prior to the separation, mother and father had a talk with the boys about the pending separation, but nothing was mentioned about the "Real Life Test" or father's struggle with his gender.

On August 1, 1992, the parties separated. They signed a separation agreement which father drafted. They agreed mother would have sole, permanent care and custody of the children, and father would refrain from visiting them for at least one year while he participated in his "Real Life Test." Mother filed a complaint for limited divorce in the State of Maryland. She filed a copy of the separation agreement with the Maryland court. Father told a court-appointed psychologist that he did not intend to end the marriage at the time of the August 1992 separation. Instead, he planned to have sex-reassignment surgery and remain married. Father proposed that the parties continue to live together and that his sons call him "Aunt Sharon." The dissolution action was dismissed prior to a judgment being entered.

Mother moved to Missouri with her sons and father has had no face-to-face contact with the boys since the August 1992 separation. He tried to contact the boys by telephone and letter but mother refused to allow any contact. Both boys have experienced emotional difficulties since the parties' separation and have been under the care of a psychologist. The oldest boy expressed "suicidal ideations" and had been unhappy because he and mother had to move away from father. He was prescribed antidepressant medication. The youngest boy was diagnosed with attention deficit disorder.

In 1993, approximately seven months after the dismissal of the Maryland action, Mother filed a petition for dissolution in Missouri which alleged in pertinent part:

15. That [father] has behaved in such a manner that [mother] cannot reasonably be expected to live with him.

16. That [father] has adopted a lifestyle such that it would be extremely harmful to the minor children for them to be placed even in the temporary custody of or visitation with [father]. That denying visitation and temporary custody to [father] is clearly in the best interests of the minor children.

Father filed a response to the petition alleging that he had been diagnosed "gender dysphoric" and had pursued treatment and rehabilitation medically indicated by this condition. Father denied that he "adopted a lifestyle," but rather that the change in his lifestyle was medically necessary for his health. He also denied that the change in his lifestyle would be "injurious per se" to the children. Further, father alleged that mother had failed to inform him about the children's development and health and denied him any contact with the children.

Mother filed a request with the court for a mental examination of father pursuant to Rule 60.01. Mother stated that she believed father to be emotionally and mentally unstable and that it would be detrimental and confusing to the children to be around father who was living as a woman. Subsequently, father moved for a mental and physical examination of mother. The court granted the parties' motions and exams were ordered to be performed by a court-appointed doctor, Dr. Partridge.

About two months before trial, father underwent "sex-reassignment" surgery. At trial mother and father testified and each presented the testimony of two experts. Mother testified that the boys had adjustment problems as to the move and the separation of the parents and were under the care of a psychologist. The oldest son was depressed, had "suicidal ideations," and was given anti-depression medication. The youngest son has been diagnosed with attention deficit disorder. Mother asked the trial court for full physical and legal custody and that "under these circumstances that there be no face-to-face visitation between father and the boys."

Father testified that he wanted to be part of the boys' lives and that he loved them but agreed that they would need counseling in order to understand what was going on and to help with their adjustment.

Three experts testified in court and a fourth's testimony was presented by deposition. The trial court found father's experts to be credible. Both had significant experience with gender identity disorders and relationships of transsexuals to their children. The court found that father's expert, Dr. Brown, was an "expert's expert." Further, it found that mother's experts lacked credibility because neither had any experience in gender identity disorders or transsexualism. Although the trial court found that one of mother's experts "formed his opinions after one or two sessions with [mother] without ever seeing the children," the testimony of the experts as set forth in the record on appeal clearly indicates that each of mother's experts, including Mr. Wilkinson, interviewed the children, while father's experts did not interview the children.

All of the experts agreed that immediate face-to-face contact would harm the boys if they were to see father in his present status and that the boys would need counseling to assist in their reunification with father. Further, they agreed that the boys' progress should be monitored and that personal contact should happen when the boys are ready. While mother's experts stated that the boys would not be equipped to handle and understand their father's status change until they reached the age of twelve, father's experts disagreed with placing an age restriction on the boys but rather stated that the approved course of treatment would be to start with telephone contact, conference call situations, therapy sessions and then "move to personal contact down the road, depending on how things progressed."

Dr. Brown, a psychiatrist specializing in gender disorders, and Pamela Marcus, a registered nurse and counselor, testified on behalf of father. Dr. Brown stated that the children and father needed to engage in some period of counseling in order to facilitate the adjustment period. Further, that the approved course of treatment to unify the children and their father would be to start with "telephone contact, conference call situations and then move to personal contact down the road, depending on how things progressed." He stated that no harm...