Woy v. Woy

• Decision Date: 06 October 1987
• Docket Number: No. WD,WD
• Citation: 737 S.W.2d 769
• Parties: , 56 USLW 2264 George H. WOY, Respondent, v. Linda L. WOY, Appellant. 38277.
• Court: Missouri Court of Appeals

Page 769

737 S.W.2d 769

68 A.L.R.4th 1047, 56 USLW 2264

George H. WOY, Respondent, v. Linda L. WOY, Appellant.

No. WD 38277.

Missouri Court of Appeals Western District.

Oct. 6, 1987.

Joan Krauskopf, University of West Virginia Law School, Evansdale Campus, Morgantown, W. Va. and J.C. Hambrick, Jr. and Jane Pansing Brown, Kansas City, for appellant; Schulz, Bender, Maher & Blair, of counsel.

John R. Shank and Thomas E. Hankins, Gunn, Hall & Stahl, Gladstone, for respondent.

Before PRITCHARD, P.J., and MANFORD and BERREY, JJ.

PRITCHARD, Presiding Judge.

On November 29, 1984, as petitioner, George H. Woy, filed petition for dissolution of marriage against Linda Louise Woy. She filed her answer and a counterclaim on December 27, 1984, admitting his allegation and affirmatively pleading that the marriage was irretrievably broken. George filed a reply, joining the issues for dissolution. Then, on March 5, 1986, after Linda's deposition was given, George filed a motion to amend his petition for dissolution by adding a count (Count II), seeking annulment. The motion alleged that on March 2, 1986, Linda gave her deposition in which she admitted that she had had a venereal disease [there was no evidence of that allegation], had engaged in a lesbian relationship prior to the marriage, and she also pleaded the Fifth Amendment, and refused to answer questions concerning her use of illegal drugs, such as cocaine, amphetamines, LSD and marijuana. George alleged that if he had known of these matters he would have refused to marry Linda (the marriage having occurred on March 29, 1980).

The motion to amend was sustained and Count II was filed, which alleged: That at the time of the marriage ceremony, George was unaware that Linda had engaged in a lesbian affair with another woman; that she had suffered from a venereal disease; and she had a dependence on illegal drugs, including, but not limited to, cocaine, LSD, marijuana and amphetamines; and had he known of these facts at the time of the marriage, he would have refused to have married respondent. George further alleged that the facts were material touching upon vital aspects of the marital relationship, and that Linda, "in concealing these facts from petitioner, acted in a fraudulent, malicious and willful manner with the specific intent to deceive and defraud petitioner." It was prayed for an order of the court declaring the purported marriage to be null and void and of no binding force and effect from the time it was pretended to be solemnized.

On the annulment issue, this evidence was adduced: Shirley Jean Charlton testified that she first met Linda Woy about six years ago. Prior to her marriage with George in 1980, she and Linda had intimate physical contact at Shirley's home in Overland Park, Kansas, the intimacies being initiated by Linda. A year or more later there was another intimate contact between Shirley and Linda which was initiated by a gentleman. About three years ago, during a discussion, Linda told Shirley about another lesbian affair in which she was involved with another woman and her husband. At Linda's invitation, Shirley went to bed with George. During the marriage, Shirley observed Linda performing oral sex on another man, who was Joe Simon. About three years ago, from January through March, Shirley went to bed with George and Linda three times. Shirley also had sex relations with George on other occasions. No lesbian activities took place in front of George.

Mary Jane Kelly, a neighbor of George and Linda, testified that in the course of the past five or six years, Linda told her that if George had known about the things she had done in the past, everything, he probably would not have married her. Linda also told her that she knew George had a girlfriend who used to be her lover, and she said, "The joke's on him". About three years prior, Linda brought a white powder to Mary Jane's home, put it on a little piece of paper on the kitchen counter, divided it into two lines, and put one end of a straw in her nose and the other end on one of the lines. One of the lines was supposed to be for Mary Jane, but she was afraid of it, so Linda took the other line. When Mary Jane asked Linda how she afforded cocaine, she said she had friends. On one occasion, Linda came to Mary Jane's home wearing a beaver coat, which she opened and showed Mary Jane and her husband that she was naked from the waist up. On another occasion, in 1981, Linda stood naked in front of them before she got into their jacuzzi. On recall, Mary Jane testified that in the summer of 1985, she saw Linda and George's younger daughter, Kimberly, swimming nude in the pool. They got out of the pool two or three times, stood side by side, and hugged for about thirty seconds. A male workman, whom they were aware of, was pouring concrete about ten feet away.

Theresa Ann McKinley knew George and Linda. On one occasion, when on vacation, Linda was smoking marijuana. Linda told Theresa that she had an affair with another man and with a woman.

Linda told George's daughter, Piper Dawn Woy, that she enjoyed using drugs, "that she'd used many. She'd shot cocaine before. That she enjoyed smoking pot, and that she would go over to friends' houses to party". She also said that some of her close friends were drug dealers. She had to be careful when she used drugs because George did not condone it and should not know anything about it, so she would have to go other places to do it. Linda told her she would go to gay bars while she was married to George, "and I believe before". On one occasion, when Piper's friends, Susan Cunkle and Jeff Martin, were in the jacuzzi, Linda pulled off Susan's swim suit.

These admissions in Linda's deposition were read into evidence: She had a lesbian affair with Shirley Charlton prior to her marriage to George, and she doubted that she told him about it. She refused to answer questions about use of illegal drugs, amphetamines, LSD and marijuana on the grounds that the answers would incriminate her. At trial, she denied that she was a lesbian, but admitted again the sexual contact with Shirley prior to the marriage, involving the genitals of one person and the mouth, tongue, hand or anus of another person of the same sex, and she did not tell George about it before the marriage. After she married George, she had a lesbian affair with Shirley with George there. After the incident, when she and Shirley went to bed with George (during which, according to Linda, lesbian activity occurred), she told George, in 1983, about the prior encounter with Shirley, and Linda and George continued to have normal sexual relations. She denied the swimming pool incident related by Mary Jane Kelly.

Joe Simon denied that he had sexual relations with Linda during her marriage, but he had known her about 20 years and had engaged in sex with her. He witnessed Linda and Shirley participating in a lesbian affair about seven years ago, which was Shirley's idea--she even brought a gift.

George H. Woy testified that he is an orthopedic surgeon in Liberty, Missouri, with a gross W-2 income in 1984, in excess of $500,000. He denied that he knew of Linda's lesbian past, or of her drug usage prior to the 1980 marriage, and testified that if he had known of those things, he would not have married her. In his deposition, he testified that about three years before and after the threesome in bed incident, he saw Shirley and Linda sitting in bed watching TV and giggling. Shirley told him that she and Linda had "done this" before the marriage and afterwards, and then he did not go out with (Shirley?) anymore, "and that's when I realized that my wife was bisexual."

The trial court found these facts: The parties were married March 29, 1980; petitioner (respondent here) is a long-standing resident of Clay County, and has practiced his profession as an orthopaedic surgeon continually; prior to the time of marriage respondent (appellant here) frequently used such illegal drugs as marijuana, cocaine and LSD, which she concealed from petitioner, who, if he had known of the drug use, would not have married her; prior to the marriage, respondent engaged in lesbian affairs which she concealed from petitioner, and had he known of the lesbian affairs, he would not have married her; unknown to him, she frequented gay bars prior to the marriage, and told their mutual friends of lesbian affairs and drug use; she removed the clothing of a female friend of his daughter while the friend was a guest in the Woy home; she caressed his daughter in the nude in front of workmen; she exhibited herself nude from the waist up, while wearing a beaver coat, in front of neighbors; she used cocaine and marijuana in front of friends and associates, and requested they not disclose this information to him; he did not discover her lesbian tendencies until only several weeks prior to the March 17, 1986, hearing; he has not used illegal drugs or condoned her use of them; and that credibility should not be given to the testimony of Linda Woy or to Joe Simon. It was concluded that an unfavorable inference should be drawn against Linda Woy by reason of her refusal to answer questions on self incrimination grounds; and that her concealment of her pre-marital lesbian affairs, and her pre-marital use of drugs, constituted fraudulent and material concealments which pertained to the marriage relationship, and which entitled him to annul the marriage. It was ordered that the marriage be annulled and the petition and counterclaim for dissolution of marriage be dismissed.

Respondent has filed a motion to strike the brief of Amici Curiae, Women's Legal Defense Fund, NOW Legal Defense and Education Fund, and American Civil Liberties Union of Western Missouri, upon the ground that it fails to set forth a fair and concise statement of the facts relevant to the questions presented for determination without argument. The brief has been examined and it...