L. v. D., 12222

• Decision Date: 01 March 1982
• Docket Number: No. 12222,12222
• Citation: 630 S.W.2d 240
• Parties: L. ____. ____., Respondent, v. D. ____. ____., Appellant.
• Court: Missouri Court of Appeals

Page 240

630 S.W.2d 240

L. ____. ____., Respondent, v. D. ____. ____., Appellant.

No. 12222.

Missouri Court of Appeals, Southern District, Division Two.

March 1, 1982.

David T. Greis, Kansas City, for appellant.

Donald E. Sotta, Joplin, for respondent.

MAUS, Chief Judge.

The marriage of appellant-mother and respondent-father was dissolved in 1974. The appellant is a lesbian. She stated she had, at different times, been involved in a homosexual relationship with four women. At the time of the hearing in this case, she had maintained such a relationship with K. C. for four years. The fact the mother was a lesbian was an issue in the dissolution proceedings. The father was given custody of their four children, ages 3 years to 9 years. The appellant was given the right of reasonable visitation. That same year the decree was modified to provide specific visitation from noon on Saturday to 6:00 p. m. on Sunday on the first and third weekends of each month. Subsequently, it was mutually agreed that one child, in rotation, could spend the second weekend of each month with the mother.

By the motion to modify in this case, the appellant seeks custody of the two younger children. By his counter-motion, the father seeks termination of the mother's visitation. After an extended hearing, the trial court made extensive and detailed findings of fact. Then, upon a sagacious analysis of the law, the trial court denied the appellant's motion and reduced and limited her visitation as will be hereinafter noted. The appellant first contends the trial court erred in not awarding her custody of the two younger children.

It is fundamental that a custody decree shall not be modified unless the court finds "upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child". § 452.410, RSMo 1978. To meet that criterion, the appellant cites four factors. She first asserts the present environment of the children is unhealthy for them and she points to the father's lack of demonstrable affection. Her evidence on this point consisted of conclusory statements that the father was unemotional and did not appropriately praise the children. While the trial court made no specific findings on this assertion, the appellant's evidence is illusory and does not provide a basis for a change of custody.

The appellant next asserts the father interfered with her visitation. She refers to evidence that he moved without consulting or notifying her and did not give her his new residential phone number. There was evidence the move was made so the father could be close to his work and while the appellant was in the army. She did have his phone number at work. Interference with visitation can be a factor in determining custody. Christianson v. Christianson, 592 S.W.2d 505 (Mo.App.1979). However, the conduct of the father does not reach that proportion.

Thirdly, the appellant relies upon the expressed desire of the two younger children to live with her. At the time of the hearing she lived in a suitable residence with her lesbian lover K. C. The first of these two children stated that the appellant did not ask them to come and live with her. He explained that he and his brother talked it over and on January 5 told her they wanted to live with her. He said he wanted to do so because he loved her more than his father. He added that his father made him play sports and that his step-mother said she did not want them living with her. He also said that he received but little praise and affection from his father. But, he said he got a lot of hugs and kisses from the appellant and from K. C. The second of these children said he loved the appellant more than his father. He had similar observations concerning praise and affection. He did state that the appellant did not discipline them.

In presenting this point, the appellant does not reconcile the testimony of the second child who unequivocally stated that before they told her of their decision, the appellant asked these two children to come and live with her. She also ignores the testimony of the next to oldest child as it pertains to the origin of this preference. This child stated that shortly after the first of the year, during visitation, the two younger children went into a room with the appellant and K. C. This child attempted to follow but was told by K. C. to go back out to the living room. When the two younger children came out, they "looked like they'd been crying. And then they-I sat down and asked them what was wrong now and they said they wanted to move up here". The father related that since that time the two younger children acted as if they didn't have to mind and threatened to tell their mother if disciplined. The step-mother said they were "just out of hand".

In determining the custody of a child the court is to consider all relevant factors, including, among other things, "(t)he wishes of a child as to his custodian". § 452.375(2). However, the wishes "of the child should be followed only if the welfare and interest of the child, as determined by all the evidence, are consistent with that preference". Kanady v. Kanady, 527 S.W.2d 704, 707 (Mo.App.1975). Further, "(i)n considering the wishes of the child, it is important to ascertain and evaluate the basis for these wishes, so that the court can properly place this element in its proper perspective in deciding what is in the best interest of the child". McBride v. McBride, 579 S.W.2d 388, 390 (Mo.App.1979). Considering the circumstances surrounding the formulation of these wishes, the trial court could have found the preference to militate against, rather than support, the appellant's position. In any event, considering all of the evidence, the expressed preference cannot cause an award of custody to the appellant to be in the best interests of the two children of tender years.

As the fourth factor the appellant asserts the father has alienated the two older children and will do likewise with the two younger children. Her argument on this point is primarily founded upon the fact the father showed the oldest child a love letter the appellant had written to her then lesbian lover. On appeal the appellant contends the trial court erred in admitting the letter. By evidence she presented, the appellant first placed this letter in issue. Her complaint it was inadmissible because written in 1972 or 1973 is not valid. The appellant contends the letter was shown because of malice and to alienate the child. In making that assertion she does not comment on the testimony of that child. This child stated that at the age of 13 he stopped visiting the appellant because "of the stuff I saw up there ... she was kissing other women and going to bed with them". He discussed these things with his father and was shown the letter. The father explained his action and the trial court accepted that testimony and found this was done with the intent to inform and educate the child of a situation which was troubling the child and not to deliberately alienate him. This court has no reason to reject that finding.

The appellant also complains because the next to oldest child is alienated. She places the blame for this alienation at the doorstep of the father. The appellant does not deal with the experiences to which she had subjected the child and to which the child adversely reacted. These included taking her to a church where she saw "(m)en holding hands and women kissing on each other" and one "guy, he dressed like punk rock". The child also recalled that at this church two seventeen year olds approached the two younger children and asked them if they were sterile. She also had observed her mother and her lover walk around the house partially clad and in bed together. It was with this background that, when asked if she did not love her mother, the girl reluctantly replied, "(n)ot that much" and when asked why, "(b)ecause of what she is".

Alienation of a child from a parent by the intentional conduct of the custodial parent demonstrates a serious breach of parental responsibility. Christianson v. Christianson, supra. The same is not true of alienation which has its foundation in the conduct of the complaining parent.

The principal thrust of the appellant's argument is that the trial court erred because it denied her custody and reduced her visitation solely because of an unjustified, irrebuttable presumption that a homosexual is an unfit parent. By this argument she attempts to make determination of custody of these children a constitutional issue. She cites cases dealing with impermissible, irrebuttable presumptions, such as Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S.Ct. 791, 39 L.Ed.2d 52 (1973); Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973); and Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1971). She also seeks to invoke the Equal Protection Clause as applied in Eisenstadt v. Baird, 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972), and the right of privacy as delineated in Eisenstadt, and as applied to marriage in Griswold v. State of Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). To form the basis for this attempt she presented the testimony of a social psychologist and a clinical psychologist that the children would not be adversely affected by living with the appellant and her lesbian lover. The trial court also received as expert evidence articles from various journals, portions of books, statistical studies, and resolutions dealing with homosexuals, their civil rights and in some instances, espousing their abilities to raise children. For an example of counterposing expert evidence on the subject and conclusions reached by Hearing Officer Cullen Coil,...