K.M.M. v. K.E.W.

Decision Date03 October 2017
Docket NumberNo. ED 105087,ED 105087
Citation539 S.W.3d 722
Parties K.M.M., Petitioner/Appellant, v. K.E.W., Respondent/Respondent.
CourtMissouri Court of Appeals

Michelle J. Spirn, Catherine Sakimura, Pro Hac Vice, Emily Haan, Pro Hac Vice, Shannon Minter, Pro Hac Vice, 7733 Forsyth Blvd., Suite 325, Clayton, MO 63105, For Petitioner/Appellant.

William Ray Price, Jr., Thomas B. Weaver, Jeffrey T. McPherson, 7700 Forsyth Blvd., Suite 1800, Clayton, MO 63105, Michelle S. House-Connaghan, Gina Casalone, Jennifer Hasegawa, 8000 Maryland Avenue, Suite 400, Clayton, MO 63105, For Respondent/Respondent.

SHERRI B. SULLIVAN, J.

Introduction

K.M.M. (Kathleen) appeals from the trial court's order and judgment granting K.E.W.'s (Kate) Motion to Dismiss for Failure to State a Claim (Motion to Dismiss) two counts of Kathleen's petition, one seeking to establish her legal parentage of B.W. (Child) under Section 210.8241 and one for breach of contract of a custody agreement, and in denying her claim for third-party custody or visitation pursuant to Section 452.3752 after a trial. We affirm in part, reverse in part, and remand for further proceedings.

Factual and Procedural Background

Kathleen filed a petition seeking joint custody and visitation of Child based on the parties' voluntary custody agreement (Count I), equitable parentage (Count II), third-party custody or visitation pursuant to Section 452.375.5(5)(a) (Count III), and her legal parentage pursuant to Section 210.824 (Count IV). Upon Kate's motion, the trial court dismissed Counts I, II, and IV for failure to state a claim and denied her claim for third-party custody or visitation pursuant to Count III.

In October 2007, Kathleen and Kate began a committed romantic relationship.3 In the summer of 2008, Kathleen and her two children from a previous relationship, L.M. and E.M., moved into Kate's home.4 In 2009, the parties opened a joint bank account to which they each contributed equally and from which they paid their shared expenses. In September 2009, the parties purchased a home together, where they lived with their children until the parties' separation in 2015.

At some point, the parties discussed and ultimately decided to have a child together, agreeing Kate would carry the child. In March 2011, the parties went to couples counseling to discuss their different parenting styles and how they would parent together.

In April 11, 2011, the parties executed documents with the Fertility and Reproductive Medicine Clinic related to the guidelines and consent to artificial insemination. This included a document titled "Patient Information and Guidelines[:] Artificial Insemination[,]" which stated, "Should a child be produced by this procedure, the responsibilities of the parent are the same as if the child were conceived by intercourse. The child shall be regarded as legitimate and entitled to all of the rights of support and inheritance as a naturally conceived child." Kate signed the line designated for the patient and Kathleen signed the line designated as "Partner[.]" They also executed a document titled "Consent to Artificial Insemination Using Sperm from an Independent Source[.]" Kate signed on the line designated for the patient and Kathleen signed the line designated "Spouse[,]" which she crossed out and replaced with "Partner[.]" The trial court found the execution of the documents evidenced a clear indication the parties knowingly entered into the process.

In order to become pregnant Kate had to undergo fertility treatments, and she became pregnant in October 2011 after the fifth insemination. The parties discussed and exchanged opinions about the prospective sperm donors.

Kate was insured under Kathleen's medical insurance as her "domestic partner," which partially paid for the cost of the fertility treatments, the artificial inseminations, and Kate's medical care during the pregnancy. Kate paid the uncovered costs of the artificial inseminations and each party made separate payments for the uncovered costs associated with Child's birth and related expenses.

Kathleen attended Kate's doctor visits and ultrasounds during the pregnancy. The trial court found the parties shared in the decision making and were excited with the anticipation of the conception, birthing, and parenting including participating in baby showers together, making a joint announcement as a couple of Kate's pregnancy, and creating a joint baby registry. The record included cards from Kate to Kathleen stating Kate was excited to have a baby with Kathleen, Kathleen was going to make "a great mom to the new baby," and referring to them as a family.

On July 5, 2012, Kate gave birth to Child. Kathleen was the only non-medical person present in the delivery room. Kathleen cut the umbilical cord and stayed overnight in the hospital with Kate and Child. Kate picked Child's first name and Child's middle name was chosen in honor of Kathleen's grandfather. The parties sent out a joint email announcing Child's birth. Kate gave Kathleen a charm bracelet with Child's first initial.

After Child's birth, Kate took 12 weeks off work. Kathleen testified she took some days off but was unable to take maternity leave. Afterward, per the parties' agreement, Child attended daycare at a facility located on Kathleen's employer's campus. On the daycare enrollment forms, Kate identified herself and Kathleen as Child's mother, parent, or guardian, and L.M. and E.M. as Child's siblings.

The trial court found Kate was Child's primary caregiver but that Kathleen participated in the care, custody, and nurturing of Child. Kathleen assisted in putting Child to bed, getting Child up in the morning, changing his diaper, and dressing

, feeding, and bathing him. Kathleen dropped off and picked up Child from daycare, took him to the pediatrician, stayed home with him when he was sick, and helped track Child's sleeping and feeding patterns. During the relationship, Kathleen carried health insurance for Child as her "domestic partner's child." Child's expenses, along with the rest of the family expenses, were paid from the parties' joint account. Kathleen read to Child, played with Child, would occasionally stop by daycare to see him during her lunch hour, and would take him with her when she went jogging. Initially, Child called Kathleen "mama" or "mommy" and Kate "mama" or "mom." As he got older, Child called them "Mommy Kathleen" and "Mommy Kate." Kate also called Kathleen "Mommy Kathleen." The trial court found the parties each participated in the care of Child "with the obvious maternalistic care [ ] that can be expected of the child's birth mother."

Kathleen testified she, Kate, and the children acted like a family—celebrating holidays and birthdays together, taking family vacations, having family photos taken, and taking care of each other. Kate created social media posts referring to herself, Kathleen, and the children as a "family." Kathleen testified she acted as a parent to Child and that Kate helped her parent L.M. and E.M. Kathleen testified she and Child were close and loved each other, and she wanted him to be safe and happy. Kathleen testified she and Child had a bonded relationship. Kathleen testified L.M. and E.M. loved Child. Kathleen submitted as evidence hundreds of photographs of herself, Kate, L.M., and E.M. with Child engaging in daily life and on special occasions.

At trial, Kate repeatedly denied she, Kathleen, and the children were a "family," instead classifying them as a household or a group of people who lived and "hung around" together. Kate testified she took on a stepmother-type role with L.M. and E.M. but asserted she was no more than their mother's girlfriend. Kate testified she and Kathleen did not equally share in the care of Child because Kathleen was not "around much" since she was traveling, working, exercising, and doing things for L.M. and E.M. During direct examination, Kate testified as follows:

Q. Would you have had artificial insemination if you had not been in a committed relationship?
A. It's tough to say. You know, would I have ever? Probably.
[Guardian ad Litem]: Objection. Speculation.
THE COURT: Yeah. It's either a yes or no. As for [Child], I guess they're saying.
A. No, I probably wouldn't have done it completely on my own.
Q. (By Kate's counsel): Why not?
A. It seemed like a lot to take on by myself.

The trial court found that until the parties' separation, the parties held themselves out, acted, and operated as a family unit. The court found the "pregnancy, birth, child rearing and child care as performed by Kate and Kathleen as the actions of a ‘family’ as defined as those who love each other and protect and follow one another, but not with the adherence of legal status."

Kathleen's name does not appear on Child's birth certificate and she never adopted Child. At trial, Kathleen asserted Kate agreed she would adopt Child. Kate maintained Kathleen did not raise the issue of adoption until near the end of their relationship and that she never agreed to it. The trial court found Kathleen brought up the issue of adoption to Kate numerous times from Child's birth to the parties' separation and each time Kate deflected such discussions. The court found Kate's timing of leaving the relationship was at least partially driven by Kathleen's continued requests to adopt Child.

Over time, the parties' relationship deteriorated. On January 17, 2015, Kate moved Child's and her belongings out of the house while Kathleen was at dinner with her mother and the children. At that time, Kate told Kathleen via text message, "I don't want you to think it means I'm going to cut you off from seeing him. I'm not." Kate testified she believed at that time it might have been in Child's best interest to remain in contact with Kathleen. Kate subsequently switched Child's daycare. Shortly after the breakup, Kathleen asked Kate to work with...

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