J.P. v. P.W.
| Decision Date | 05 May 1989 |
| Docket Number | 15981,Nos. 15937,s. 15937 |
| Citation | 772 S.W.2d 786 |
| Parties | J.P., Petitioner-Appellant-Respondent, v. P.W., Respondent-Cross-Appellant. |
| Court | Missouri Court of Appeals |
Application to Transfer Denied Aug. 1, 1989.
Daniel T. Moore, L. Joe Scott, Poplar Bluff, for petitioner-appellant-respondent.
Therese A. Schellhammer, Little & Schellhammer, Poplar Bluff, for respondent-cross-appellant.
The genesis of this proceeding is a Texas decree placing a two-year-old girl in the primary custody of her mother, but granting the father "possessory custody" for ten days every other month. The mother filed in the Circuit Court of Butler County, Missouri, a motion to modify by restricting visitation by the father to visitation in her presence. Upon hearing that motion, the circuit court entered a decree which included a provision that during the father's visitation or temporary custody "neither the Respondent's present lover nor any other male with whom the Respondent may be residing shall be in the child's presence or in the Respondent's home during such visits." The mother appeals contending that restriction is not adequate. The father appeals contending the restriction was improperly imposed. The appeals have been consolidated for submission and disposition.
This court must at the outset consider the father's contention that only evidence of events occurring and circumstances existing since the entry of the Texas decree are admissible. As a general proposition, the father's contention is correct. Vandegriff v. Vandegriff, 695 S.W.2d 941 (Mo.App.1985). However, evidence of certain categories of prior and contemporaneous events and circumstances is admissible for a variety of purposes. For example, evidence of the testimony at the prior hearing is admissible to establish what facts were unknown to or concealed from the court. Jones v. Jones, 724 S.W.2d 615 (Mo.App.1986). Further, evidence of prior conduct is admissible if relevant for the purpose of evaluating the fitness of a parent to have custody of children. Pulliam v. Sutton, 728 S.W.2d 252 (Mo.App.1987). The admissibility of evidence for the latter purpose has been sagaciously expressed in a statement particularly applicable to this case.
In this connection appellant's Point IV complains of the court's receipt into evidence the testimony of S.L. which related to prior homosexual activities of appellant with that young boy. Appellant says that this could not be considered under § 452.410 because the facts elicited were known to the court at the original trial, and thus could not be a changed circumstance. The trial court here was not that which heard the original trial. It was certainly competent for the court to consider this evidence of appellant's prior conduct as it might bear upon his emotional stability and which in turn would bear upon the well-being of the child under § 452.400.
L.L.T. v. P.A.T., 585 S.W.2d 157, 159 (Mo.App.1979).
Within the limitations above observed, the following is a summary of the evidence of the background of the parties relevant to the mother's motion. The mother and father were natives of Iowa. They were married in Iowa. They later moved to Austin, Texas. There each attained the requisite degree at the University of Texas and became a registered nurse. The mother was employed in that capacity. The father worked as a research assistant and pursued graduate studies. The female child in question was born on May 13, 1986.
Under unexplained circumstances, the father met Harry Reed in May, 1985. Reed had been an active homosexual for six years. At that time the father and Reed had a sexual relationship. By October, 1986, their relationship had grown more serious and they were engaging in oral sex on a regular basis. After his homosexual encounter with Reed, the father continued to have normal sexual intercourse with the mother.
The father first told the mother of his homosexuality in December, 1986. The mother left Austin and established her home and that of the baby with her parents in Iowa. The petitioner and her mother and father and brother returned to Austin to obtain the wife's belongings. After the father and brother had left with a truck containing those belongings, the respondent arrived at the parties' home. He encountered his mother-in-law and the petitioner. The respondent, who was 6 feet 2 inches tall and weighed approximately 230 pounds, first grabbed the mother-in-law. Then he engaged in a fight with the petitioner concerning whether or not the mother would take an automobile.
At the time of the initial hearing in Texas on May 4, 1987, the wife and child were living in Puxico, Missouri. She was working as an assistant in her brother's veterinary clinic. The father was living in an apartment in Austin with his homosexual lover, Harry Reed. At the hearings in Texas, there was presented to the court the issue of whether or not Harry Reed should remain in the father's home during visitation by the child. Transcripts of some of the hearings in Texas were filed with the trial court and are now before this court. The four transcripts filed disclose that the last hearing was on August 5, 1987. However, the final decree recites that the case came on for hearing on September 4, 1987. The decree itself is dated November 13, 1987.
The mother filed the motion to modify in question on January 5, 1988. A hearing was held on that petition on April 15, 1988. The following is an outline of the testimony at that hearing. The mother, with the child, was living in Poplar Bluff. She was employed as director of patient education at Lucy Lee Hospital in Poplar Bluff. The father was still living in Austin, Texas. He worked part-time as a research assistant and pursued graduate studies. He and his homosexual lover, Harry Reed, lived in an apartment. They kiss and hold hands. They sleep in the same bed. He and Reed perform oral sex on each other approximately once or twice each week. He states their relationship is "monogamous". He regards it as permanent. He probably would marry Reed if he were permitted to do so.
The father thinks that it is "best that she [the child] know who her father is and to know what her father is." He thinks that it is in the best interests of the child for the child to be in his home when he is living there with Reed. He believes it would be a healthy and broadening influence upon the child's upbringing and development to be exposed to the alternate lifestyle of he and Reed. He added, "It would allow her to see a broad spectrum, perhaps, of human interaction not just between heterosexual people, but also homosexual people." He would be adverse to having Reed leave the apartment when his daughter is visiting for the ten-day period, but he would agree to that if it is a condition. At the initial hearing in Texas, the father was asked the following questions:
Q. And that homosexual partner is important to you, undoubtedly.
A. Very much so.
Q. And in fact if Kay Marie visits you in Austin, this homosexual partner will be an important part in that visitation, I'm sure.
A. That's very true, yes. I want my lover to be able to share some time with Kay Marie also. I think he's got some important things that he can offer to her. We can demonstrate that we can love each other.
The only reason that he would prefer for his daughter to be heterosexual is because of the attitude of society toward homosexuality.
The father testified that pursuant to an interim order the child did visit in his home in Austin for ten days in October, 1987. During that time Reed continued to live in the apartment. When asked if Reed participated in the care and supervision of the child, the father answered: "In a supportive way." He then volunteered, "[H]e was never left alone with Kay Marie or anything." The transcript contains no suggestion that anyone aided the father and Mr. Reed in caring for the child.
When asked if during the ten-day period of visitation he and Reed engaged in any sexual contact, the father answered: "Nothing more than perhaps hand holding or kissing." They did sleep in the same bed. The child slept in another room.
When the child returned to Missouri, her mother noticed a change in the child.
In October when I received her back she had greatly changed her behavior such as I couldn't even leave the room, clinging behavior and before she has always been an independent type little girl. Couldn't even leave the room in the apartment, I could not get her to the bathroom, that was my first clue that there was something wrong; I could not get her in the bathroom and I could not get her in the bathtub to give her a bath and therefore, it made me assess her a little closer and I saw the labia was swollen--
Later the mother examined the child using a lighted scope and saw a vaginal tear. The child was taken to a doctor. The mother strongly believes that the child's exposure to her father's homosexuality will be adverse to the child's development. She is vehemently opposed to unsupervised visitation by the father. She is also concerned with the exposure of the child to AIDS. The father and an expert witness he presented did acknowledge the incidence of AIDS is higher in homosexuals than in the general population. The expert doubted that AIDS could be spread through casual contact. The expert added, "We have seen that more than 2,000 hospital workers have come into a considerable amount of contact of blood with people with AIDS through needle sticks, through cuts and of those 1,000 to 2,000 people that have been followed, only 12 of them have showed evidence of infection." The expert acknowledged that it is possible that a person infected with the AIDS virus to test negative.
The trial court made extensive findings of fact. Those findings include the following: The existence of and nature of the homosexual...
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