Stegemann v. Fauk, s. 38522

Decision Date08 August 1978
Docket Number38543,Nos. 38522,s. 38522
Citation571 S.W.2d 697
PartiesEric STEGEMANN, Appellant-Respondent, v. William FAUK et al., Respondents-Appellants. . Louis District, Division Four
CourtMissouri Court of Appeals

London & Greenberg, Burton M. Greenberg, St. Louis, Paul B. Rava, Richard D. Watters, Lashly, Caruthers, Thies, Rava & Hamel, St. Louis, for appellant-respondent.

Thomas W. Wehrle, County Counselor, Vernon Kelly, Clayton, William O'Herin, St. Louis, for respondents-appellants.

DOWD, Presiding Judge.

A case of expungement of marriage records.

Plaintiff Eric Stegemann, and defendant Christl Kubitschek Stegemann (hereinafter referred to as Eric and Christl) both have appealed from the judgment rendered by the Circuit Court of the County of St. Louis.

The suit was initiated in equity by Eric to expunge particular marriage records which were in the custody of the St. Louis Recorder of Deeds. These records contained the representation that Eric and Christl were married on August 11, 1969. Eric has denied his participation in this marriage ceremony. Eric married a woman in October, 1970.

Named as defendants in the lawsuit were William Fauk, the Recorder of Deeds of St. Louis County, and Christl, the alleged supplier of the information which Eric claims to be false.

Christl, a resident of West Germany, responded to the suit by filing a two count counterclaim. Count I alleged that she married Eric on August 11, 1969, that a child was born on November 16, 1969 as a result of their pre-marital union, and that the marriage was irretrievably broken. The prayer sought dissolution, maintenance, child custody, child support, and attorneys fees. Count II of the counterclaim asserted that if the court did not find a marriage to exist, Eric should be directed to pay for past and future support of the issue of the union. In addition, the prayer sought a declaration of paternity, together with an order that Eric provide the requested support, and attorneys fees.

Two juries consisting of 8 members each were empaneled to serve the court in an advisory capacity. The issues were framed by the court in the following terms: was there a marriage, and was there a child born of the union of these two people.

On the issue of the existence of a marriage, Eric offered the testimony of Donald and Carol George, who were witnesses at the wedding on August 11, 1969. Donald George admitted that he vaguely recalled the groom's appearance, and that recollection did not coincide with Eric's traits. George further testified that he would not be able to identify the groom of August 11, 1969 in a lineup. Carol George, who was acquainted with Christl before the alleged wedding, agreed with her husband that Eric looked different from the man who married Christl six years before, but acknowledged that her memory was not vivid.

The judge who performed the ceremony testified that his records indicated that Christl had married Eric, but that identification was not required of the parties. Due to lapse of time and the quantity of couples for whom the judge had performed ceremonies, he was unable to recognize either Eric or Christl. Eric testified that he met Christl in November of 1968, and that he became intimate with her in January of 1969. When she later informed him that she was pregnant, he advised her that he would not marry her because he did not love her. Although he suspected that Christl could have been impregnated by another man, he told her that if the child was his he would take care of it.

When congratulated on his marriage by members of the community Eric commenced a search of the records filed with the St. Louis Recorder of Deeds to discover the cause. His search produced a marriage license application which contained Christl's signature as well as an alleged forgery of his signature. Upon this discovery Eric wrote to the Metternick, Germany, police to protest Christl's use of his name, claiming no marriage had taken place.

Eric produced a handwriting expert who compared Eric's signature on checks with the signature on the marriage license application. The expert testified that there were stylistic discrepancies which indicated that Eric's signature had been imitated.

Christl testified that she and Eric were married for the sole purpose of legitimizing their unborn child. Neither cohabitation nor conjugal relations characterized the marriage. It was the intent of the parties that a divorce would be sought after three months.

On the paternity issue, Christl testified that she had ceased being intimate with one Newman, with whom she had previously resided, before she became sexually involved with Eric. She claimed that Eric alone had access to her within the critical stage in February when she became pregnant.

Blood tests were conducted and revealed that Christl had type B blood, Eric had type AB blood, and Antonia, the child, had type A blood. On the basis of the scientific tests which were conducted, Dr. Levy concluded that Eric could not be excluded from the realm of biologically possible fathers.

The transcript also indicated that Newman, a previous paramour of Christl, had type B blood. In the course of Dr. Levy's explanation of the tests, he stated that on routine testing, a person having type B blood, uniting with another having type B blood, could not produce a child having type A blood.

The two advisory juries were submitted the following interrogatories: Do you believe that it is more probably true than not true that Eric did not marry Christl on August 11, 1969? Do you believe that it is more probably true than not true that Antonia is the natural born child of Eric Stegemann? (If six or more were unable to agree in their answer to # 1, then: Do you believe it is more probably true than not true that Antonia is not the natural born child of Eric?)

Six of eight members of one advisory jury answered yes to the first interrogatory, and seven of those eight members answered yes to the second interrogatory. The other jury was evenly split on the first interrogatory, seven of those eight also answered yes to the second interrogatory, and lastly, seven answered no to the third interrogatory.

In a scholarly opinion, the trial judge held that neither Christl nor Eric had sustained their burden of proving the existence or nonexistence of a marriage. After balancing the equities, the court concluded that the marriage was not Matrimonium verum, but void. The effect of such a conclusion is that the marriage records should be expunged, Antonia is the legitimate child of Christl and Eric, and that Eric's later marriage was valid and not bigamous. Custody was awarded to Christl, and Eric was directed to pay a portion of Christl's "lying-in expenses" at birth of child as well as $130 a month for child support. The court further ordered that Eric pay: $750 for attorney fees incurred by Christl in the prosecution of Count I of her counterclaim and $100 for litigation expenses, $850 for attorneys fees incurred by Christl in the prosecution of Count II of her counterclaim, in addition to $600 for her traveling expenses, and $800 for attorneys fees and $125 for litigation expenses incident to Christl's defense of Eric's expungement claim.

Eric's appeal from this judgment is predicated on the contention that the trial court erred in the following respects: there was substantial evidence that Eric did not participate with Christl in a marriage ceremony; there was no substantial evidence to support a finding that Eric was the father of Christl's child; it was an abuse of discretion to award attorneys fees, litigation expenses and travel expenses to Christl; and the denial of Eric's motion for a continuance during the trial was arbitrary, capricious and an abuse of discretion....

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    ...a different conclusion does not demonstrate that the judgment of the court is contrary to the weight of the evidence. Stegemann v. Fauk, 571 S.W.2d 697, 700 (Mo.App.1978). IV. A resolution of the issues requires adherence to the time-tested principles of common law and the various provision......
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    ...establish paternity by a preponderance of the evidence, unaided by the presumption of legitimacy afforded by marriage. Stegemann v. Fauk, 571 S.W.2d 697, 701 (Mo.App.1978). In this court tried case our standard of review is set out in Rule 73.01(c)(1) and Murphy v. Carron, 536 S.W.2d 30, 32......
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    ...does not necessarily demonstrate that the trial court's determination is against the weight of the evidence. Stegemann v. Fauk, 571 S.W.2d 697, 700 (Mo.App.1978). Prior to remand, we concluded that the "record amply supports the trial court's conclusion that there was a willful abandonment ......
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