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McQueen v. Gadberry

Court of Appeals of Missouri, Eastern District, Third Division

November 15, 2016

JALESIA MCQUEEN, Appellant,
v.
JUSTIN GADBERRY, Respondent.

         Appeal from the Circuit Court of St. Louis County 13SL-DR06185, Honorable Douglas R. Beach

          ROBERT M. CLAYTON III, Judge

          Jalesia McQueen appeals the portion of the trial court's judgment dissolving her marriage to Justin Gadberry, following a bench trial, pertaining to the disposition of two pre-embryos which were frozen after McQueen and Gadberry began the process of in vitro fertilization ("IVF"). The trial court's judgment found the frozen pre-embryos are marital property of a special character, awarded the frozen pre-embryos to Gadberry and McQueen jointly, and ordered that "no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both [Gadberry] and [McQueen]." The trial court also found "[Gadberry's] and [McQueen's] fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution will be violated if either is forced to procreate against his or her wishes." We affirm the trial court's judgment because we do not find it erroneous under the circumstances of this case.[1]

          I. BACKGROUND

         A. Relevant Procedural Posture and Evidence Presented at Trial

         McQueen and Gadberry married on September 2, 2005. The parties separated sometime in September 2010, and on October 11, 2013, McQueen filed a petition for dissolution of marriage against Gadberry in the Circuit Court of St. Louis County. Gadberry then filed an answer and counter-petition for dissolution of marriage. The only disputed issue during the parties' divorce proceedings was the disposition of the two frozen pre-embryos.[2]

         On May 19, 2014, the trial court, over Gadberry's objection and apparently sua sponte, appointed a guardian ad litem ("GAL") for the frozen pre-embryos.[3] The trial court subsequently held a two-day bench trial on September 10th and 12th of 2014 at which McQueen and Gadberry both testified and appeared with counsel. The GAL was also present at the trial and briefly questioned McQueen. However, the GAL did not question Gadberry, the GAL did not testify, and the GAL did not submit an oral or written recommendation regarding the disposition of the frozen pre-embryos. The following evidence was presented at trial.

         1. The Context of McQueen's and Gadberry's Decision to Use IVF

         Early in the parties' marriage, Gadberry was in the U.S. Army and was about to be deployed to Iraq. The parties discussed their concerns about having children due to Gadberry's upcoming deployment and McQueen's age. Prior to Gadberry's deployment, he met with McQueen's doctor and produced semen specimens which were frozen.

          Gadberry was deployed in Iraq from November 2005 through November 2006. During that timeframe, including when Gadberry was "under combat missions continuously, " McQueen, who was living in the St. Louis area, initiated discussions with Gadberry about beginning the process of IVF. At some point, both parties agreed to have pre-embryos created from Gadberry's frozen semen and McQueen's eggs via IVF. The parties' decision to begin the process of IVF did not occur because McQueen had any issues relating to infertility but occurred because the parties were geographically separated as a result of Gadberry's active military service.

         Sometime between February and April of 2007, while Gadberry was stationed at Fort Bragg, North Carolina and McQueen was in the St. Louis area, four pre-embryos were created from McQueen's eggs and Gadberry's sperm via IVF.[4] Gadberry testified he agreed to begin the process of IVF with McQueen, he agreed for pre-embryos to be created from his sperm and McQueen's eggs, and he intended to have children from the process. The parties do not dispute that at the time the pre-embryos were created, there was no agreement or express recording of the parties' intentions regarding the number of pre-embryos to be created, if or when implantation of any or all would occur, or any procedure for addressing excess or unused pre-embryos. Additionally, neither party testified Gadberry explicitly agreed to the creation of four pre-embryos. In fact, Gadberry testified he did not have any discussions with McQueen's doctor regarding the creation of the four pre-embryos, and McQueen testified that prior to their separation in September 2010, the parties did not discuss how many children they wanted to have.

         After the four pre-embryos were created from McQueen's eggs and Gadberry's sperm via IVF, two pre-embryos were implanted in McQueen in an attempt for McQueen to have successful pregnancies and the parties to potentially have children. As a result of the implantation of the two pre-embryos, McQueen became pregnant and, in November 2007, she gave birth to twin boys, T.G. and B.G. The remaining two pre-embryos, which are the subject of this appeal, were cryogenically preserved and initially stored at a cryobank facility connected to McQueen's doctor's office in the St. Louis area.[5]

         2. The Transfer of the Frozen Pre-Embryos to another Cryobank Facility

         Sometime in 2010, the parties received a notice stating McQueen's doctor's office in the St. Louis area was closing and that the frozen pre-embryos would need to be transferred to another cryobank facility. McQueen's doctor referred McQueen and Gadberry to Fairfax Cryobank, a company which has cryobank facilities in states other than Missouri. Fairfax Cryobank required a set of documents (collectively "Documents"), including a document titled "Fairfax Cryobank Directive Regarding the Disposition of Embryos" ("Directive"), to be completed and returned before the frozen pre-embryos could be shipped to one of its cryobank facilities.

         The parties completed all of the Documents including the Directive[6] and returned them to Fairfax Cryobank in the mail. Subsequently, the frozen pre-embryos were transferred to a storage facility in Virginia where they are currently stored.[7]

         3. Whether the Parties Had Pre-Separation Discussions about the Disposition of the Frozen Pre-Embryos in the Event of Separation or Divorce and Each Party's Requested Relief at Trial

         There is conflicting evidence whether the parties had discussions prior to their separation about what they wanted to happen with the frozen pre-embryos if they were to separate or divorce. Although McQueen testified that prior to their separation the parties did not discuss how many children they wanted to have, McQueen also testified she discussed options with Gadberry and they both decided they wanted the frozen pre-embryos to be used by McQueen if the parties were to become separated or divorced.

         On the other hand, Gadberry testified he and McQueen did not discuss what they wanted to happen with the frozen pre-embryos if they were to separate or divorce. He specifically testified there were no such discussions, (1) between the time of the birth of the parties' sons T.G. and B.G. in November 2007 and May 15, 2010; (2) on May 15, 2010 or May 21, 2010 (two dates appearing on the Directive) or any time in between those two dates; or (3) any time before the parties separated in September 2010.

          At trial, McQueen testified the only disposition she would deem acceptable was for the trial court to award the frozen pre-embryos to her because she wanted to implant them in an attempt to have successful pregnancies and potentially have more children with Gadberry.[8]McQueen also testified that although she and Gadberry had problems communicating since their separation and had problems co-parenting T.G. and B.G., their co-parenting of T.G. and B.G. was "getting better, " and she still wanted to attempt to potentially have more children with him.

         On the other hand, Gadberry requested that the trial court not award the frozen pre-embryos to McQueen because he did not want to potentially have any more children with her. Gadberry testified he did not believe he and McQueen could successfully co-parent any additional children born as a result of any implantation of the frozen pre-embryos in part because the parties had "extreme difficulties" co-parenting their sons T.G. and B.G. Further, Gadberry testified he would deem one of four options acceptable, (1) for the frozen pre-embryos to be donated to an infertile couple, preferably outside of the St. Louis area; (2) for the frozen pre-embryos to be donated to science; (3) for the frozen pre-embryos to be destroyed; or (4) for the frozen pre-embryos to remain in their status quo of being frozen and stored until the parties could agree upon a disposition.

          4. Relevant Arguments Raised by the Parties during the Trial Court Proceedings

         The parties made the following arguments during the trial court proceedings.[9] McQueen argued the trial court should award "custody" of the frozen pre-embryos to her because "Missouri law . . . recognizes an embryo is a person with protectable rights in life, health and well-being from the moment of conception onward, unless such protection is barred by the U.S. Constitution and decisional interpretation thereof. Section 1.205 [RSMo 2000]."[10] In other words, McQueen essentially argued the frozen pre-embryos should be classified as children under Missouri's dissolution statutes (Chapter 452) because they are considered persons under section 1.205. Alternatively, McQueen argued that if the frozen pre-embryos should be classified as property under Chapter 452, the Directive entered into by her and Gadberry was a valid and enforceable agreement requiring the trial court to award the frozen pre-embryos to her. McQueen also claimed the GAL did not fulfill her legal duties.

         In contrast, Gadberry asserted awarding the frozen pre-embryos to McQueen, who intended to implant them, would force him to procreate against his wishes and therefore would violate his fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution. Gadberry also argued that the trial court should find the Directive invalid and unenforceable under the circumstances of this case, the court should consider the frozen pre-embryos to be marital property under Chapter 452, and the court should award the frozen pre-embryos to Gadberry and McQueen jointly and order that no transfer, release, or use of them shall occur without the signed authorization of both parties.

         B. The Trial Court's Judgment and McQueen's Post-Trial Motion

         On April 13, 2015, the trial court entered a judgment finding the frozen pre-embryos are marital property of a special character, awarding the frozen pre-embryos to Gadberry and McQueen jointly, and ordering that "no transfer, release, or use of the frozen [pre-]embryos shall occur without the signed authorization of both [Gadberry] and [McQueen]." In making that determination, the court made several findings of fact and conclusions of law. The trial court found the frozen pre-embryos should not be classified as children under Chapter 452; Missouri Courts and the Missouri Legislature have provided no guidance concerning issues relating to the frozen pre-embryos; and "[Gadberry's] and [McQueen's] fundamental constitutional rights to privacy and equal protection under the 14th Amendment to the U.S. Constitution will be violated if either is forced to procreate against his or her wishes." The court also made multiple findings supporting the conclusion that the Directive was not a valid and enforceable agreement between the parties which required the frozen pre-embryos to be awarded to McQueen.[11]

         McQueen subsequently filed a post-trial motion raising the claims she brings in this appeal, which the trial court denied. McQueen appeals.

         II. DISCUSSION

         McQueen raises three points on appeal. In her first point, McQueen asserts the trial court erred in classifying the frozen pre-embryos as marital property of a special character instead of children under Chapter 452. In her second point, McQueen argues the trial court erred in failing to require the GAL to advocate for the "best interests" of the frozen pre-embryos. And in her third point, McQueen contends that, assuming the frozen pre-embryos were appropriately characterized as property of a special character, the trial court erred in awarding the frozen pre-embryos to the parties jointly.

         A. The Sensitive Yet Strictly Legal Nature of this Case

         Before addressing the merits of McQueen's points on appeal, it is important to initially note that this Court recognizes the sensitive nature of this case and the differing personal beliefs it evokes - ethical, religious, and philosophical - pertaining to scientific advancements in reproductive technology, procreational choice, and the age-old and disputed question of when life begins. Those issues are not for this Court to decide. See In re Marriage of Witten, 672 N.W.2d 768, 774 (Iowa 2003) ("we are not called upon to determine the religious or philosophical status of [ ] fertilized eggs"). Instead, we are only required to decide whether frozen pre-embryos have the legal status of children under our dissolution of marriage statutes, see id., and whether, pursuant to our standard of review, the trial court erred in making certain rulings and entering the disposition of this case.[12]

         B. General Standard of Review

         As with any court-tried case, our Court reviews a trial court's judgment in a dissolution action pursuant to Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Alabach v. Alabach, 478 S.W.3d 511, 513 (Mo. App. E.D. 2015). Accordingly, we will affirm the trial court's judgment unless there is no substantial evidence to support it, it is against the weight of the evidence, it erroneously declares the law, or it erroneously applies the law. Id. In addition, we view the evidence and inferences therefrom in the light most favorable to the trial court's judgment and disregard all contrary evidence and inferences. Kropf v. Jones, 489 S.W.3d 830, 834 (Mo. App. E.D. 2015).

         While an appellate court reviews questions of law de novo, "[j]udging credibility and assigning weight to evidence and testimony are matters for the trial court, which is free to believe none, part, or all of the testimony of any witnesses." St. Louis Police Leadership Organization v. City of St. Louis, 484 S.W.3d 882, 888 (Mo. App. E.D. 2016); Kropf, 489 S.W.3d at 834 (quotations in original). Consequently, if facts relevant to a question of law are contested, we defer to the trial court's credibility determinations and assessment of the evidence. City of St. Louis, 484 S.W.3d at 888; Kropf, 489 S.W.3d at 834. Our Court is also bound by the trial court's findings of fact so long as they are supported by substantial evidence. O'Gorman & Sandroni, P.C. v. Dodson, 478 S.W.3d 539, 543 (Mo. App. E.D. 2015).

         Finally, in reviewing a court-tried case, an appellate court is primarily concerned with the correctness of the trial court's decision rather than the route taken to reach it. Id. "Therefore, we are obliged to affirm if we determine that the trial court reached the correct result, regardless of whether the trial court's proffered reasons are wrong or insufficient." Id.

         C. Whether the Trial Court Erred in Classifying the Frozen Pre-Embryos as Marital Property of a Special Character Instead of Children under Chapter 452

         In McQueen's first point on appeal, she asserts the trial court erred in classifying the frozen pre-embryos as marital property of a special character instead of children under Chapter 452. While it is undisputed Chapter 452 does not expressly refer to frozen pre-embryos or declare they are property or children for purposes of dissolution proceedings, McQueen asserts the trial court should have classified the frozen pre-embryos as children because section 1.205, which declares that, inter alia, life begins at conception, applies to frozen pre-embryos.[13] See section 1.205.1(1). In response, Gadberry contends applying section 1.205 to frozen pre-embryos would violate his constitutional right to privacy, right to be free from governmental interference, and right not to procreate. Gadberry also maintains that the trial court properly classified the frozen pre-embryos as marital property of a special character.

         1. The Standard of Review and General Law for Point I

         The parties' arguments pertaining to McQueen's first point on appeal involve issues of statutory interpretation and the constitutionality of the application of a statute, which are questions of law this Court reviews de novo. Matter of Adoption of E. N.C. , 458 S.W.3d 387, 394 (Mo. App. E.D. 2014). Our primary rule in interpreting statutes is to determine the intent of the legislature from the language used, to give effect to that intent if possible, and to consider the words used in their plain and ordinary meaning. Bolt v. Giordano, 310 S.W.3d 237, 242 (Mo. App. E.D. 2010). "[I]n determining legislative intent, [a] statute is read as a whole and in pari materia with related sections." Dodson v. City Of Wentzville, 216 S.W.3d 173, 177 (Mo. App. E.D. 2007) (quoting Lane v. Lensmeyer, 158 S.W.3d 218, 226 (Mo. banc 2005)). Pursuant to the doctrine of in pari materia, consistent statutes relating to the same subject matter are to be construed together as though they constitute one act, and we presume the statutes were intended to be read harmoniously. BASF Corp. v. Director of Revenue, 392 S.W.3d 438, 444 (Mo. banc 2012); Lapponese v. Carts of Colorado, Inc., 422 S.W.3d 396, 402 (Mo. App. E.D. 2013).

         2. McQueen's Arguments Regarding Section 1.205 and Section 188.015 RSMo Supp. 2012

         Section 1.205 provides:

1.The general assembly of this state finds that:
(1)The life of each human being begins at conception;
(2)Unborn children have protectable interests in life, health, and well-being;
(3)The natural parents of unborn children have protectable interests in the life, health, and well-being of their unborn child.
2.Effective January 1, 1988, the laws of this state shall be interpreted and construed to acknowledge on behalf of the unborn child at every stage of development, all the rights, privileges, and immunities available to other persons, citizens, and residents of this state, subject only to the Constitution of the United States, and decisional interpretations thereof by the United States Supreme Court and specific provisions to the contrary in the statutes and constitution of this state.
3. As used in this section, the term "unborn children" or "unborn child" shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development.
4.Nothing in this section shall be interpreted as creating a cause of action against a woman for indirectly harming her unborn child by failing to properly care for herself or by failing to follow any particular program of prenatal care.

(emphasis omitted).

         McQueen argues the legislature intended for frozen pre-embryos to be considered children under Missouri's dissolution statutes because, (1) section 1.205.1(1) declares that "[t]he life of each human being begins at conception"; (2) language in section 1.205.2 implicitly refers to unborn children as persons; and (3) section 1.205.3 states the term "unborn children" "shall include all unborn child or children or the offspring of human beings from the moment of conception until birth at every stage of biological development." McQueen also relies on the definitions of "unborn child" and "conception" found in section 188.015 RSMo Supp. 2012.[14]Section 188.015(9) defines an "unborn child" as "the offspring of human beings from the moment of conception until birth and at every stage of its biological development, including the human conceptus, zygote, morula, blastocyst, embryo, and fetus[.]" Section 188.015(3) defines "conception" as "the fertilization of the ovum of a female by a sperm of a male[.]" The preceding definitions in section 188.015 apply to section 1.205 because both statutes relate to a similar subject matter, were passed on the same day and as part of the same act, and refer to the same terms. State v. Knapp, 843 S.W.2d 345, 347 n.2, 347-48 (Mo. banc 1992) (stating sections 1.205 and 188.015 were passed on the same day and as part of the same act and finding section 1.205 and another statute were in pari materia under similar reasoning).

         McQueen asserts that because the frozen pre-embryos were created after her eggs were fertilized by Gadberry's sperm via IVF, the frozen pre-embryos are "human beings" and "unborn children" under sections 188.015 and 1.205 which are entitled to "protectable interests in life, health, and well-being" and "all the rights, privileges, and immunities available to other persons . . . of this state" under Chapter 452. See sections 1.205.1(1)-(2) and .2; sections 188.015(9) and (3). McQueen further claims that she has "protectable interests in the life, health, and well-being" of the frozen pre-embryos under Chapter 452. See section 1.205.1(3). McQueen's arguments only prevail if we find the language of section 1.205 applies to Chapter 452 under the circumstances of this case.

         3. Prior Case Law Interpreting and Applying Section 1.205 In Utero

         Language in sections 1.205.1(2) and .2 providing "unborn children have 'protectable interests in life, health, and well-being, ' and enjoy '. . . all the rights . . . of other persons . . .' [ ] necessarily implies that unborn children are persons . . . for purposes of section 1.205." Knapp, 843 S.W.2d at 347 (quoting sections 1.205.1(2) and .2) (emphasis omitted and added). In addition, "[r]eading all subsections of section 1.205 together and considering especially the express language of [1.205.2] that '. . . the laws of this state shall be interpreted and construed . . ., ' it is clear that section 1.205 is intended to apply to at least some other statutes." Knapp, 843 S.W.2d at 347 (quoting section 1.205.2). Nevertheless, the extent to which language in section 1.205 might be used to interpret other state statutes is something which can only be determined by Missouri Courts based on the circumstances of each case. Webster v. Reproductive Health Services, 492 U.S. 490, 504, 506-07 (1989).

         Missouri Courts have interpreted language in section 1.205 to mean that a fetus in utero, defined as a stage of biological development inside a woman's uterus, is considered a person for purposes of applying criminal and civil liability statutes against third parties for causing the death of an unborn fetus. See State v. Wade, 232 S.W.3d 663, 665 (Mo. App. W.D. 2007); Bailey v. State, 191 S.W.3d 52, 54-55 (Mo. App. E.D. 2005); see also section 188.015(9) (defining unborn child as a stage of biological development including a fetus); Webster's New World College Dictionary 764 (5th ed. 2014) (defining "in utero" as "in, within, or while inside the uterus").[15]

         Further, Courts have held that interpreting section 1.205 to apply to criminal and civil liability statutes against third parties in cases where there is the death of an unborn fetus, in utero, is not contrary to U.S. Supreme Court precedent, specifically Roe v. Wade, 410 U.S. 113 (1973). See Webster, 492 U.S. at 491, 506 (interpreting section 1.205 to offer protections to unborn children in tort law is permissible under Roe); Bailey, 191 S.W.3d at 53, 55 and State v. Rollen, 133 S.W.3d 57, 58, 61, 63 (Mo. App. E.D. 2003) and State v. Holcomb, 956 S.W.2d 286, 289-93 (Mo. App. W.D. 1997) (all rejecting defendants' arguments that interpreting section 1.205 to mean a fetus in utero is a person for criminal statutes is contrary to Roe).

         4. The Unique Circumstances of this Case and Whether Section 1.205 Constitutionally Applies to Frozen Pre-Embryos In Vitro

         Unlike prior cases interpreting section 1.205, the circumstances of this case do not involve a stage of biological development in utero or the application of section 1.205 to uninvolved third parties. Instead, this case involves frozen pre-embryos in vitro, which are outside of McQueen's uterus and cryogenically preserved and stored in an artificial environment. See Webster's New World College Dictionary 765 (5th ed. 2014) (defining "in vitro" as "outside or isolated from the living organism and in a test tube or other artificial environment"); see also 87 A.L.R.5th 253 set out in footnote 4 (describing the beginning stages of IVF and cryopreservation). Additionally, this case involves circumstances where one of the individuals who provided their respective eggs or sperm for purposes of IVF (Gadberry) does not want the frozen pre-embryos used to potentially have any more children. Further, Gadberry claims that allowing McQueen to use the frozen pre-embryos contrary to his wishes would violate his constitutional rights. Whether the legislature's declarations in section 1.205, including that life begins at conception/fertilization, constitutionally apply to frozen pre-embryos and whether frozen pre-embryos should be considered "children" under Missouri's dissolution statutes are issues of first impression.

         We initially consider the Missouri Supreme Court's discussion of the concept of in pari materia in Connor v. Monkem Co., Inc. and section 1.205 as a whole. Connor, 898 S.W.2d 89, 92, 92 n.8 (Mo. banc 1995); see City of Wentzville, 216 S.W.3d at 177 (in determining legislative intent, we read a statute in pari materia with related sections and read the statute as a whole). In Connor, a majority of the Missouri Supreme Court held a natural parent can bring a wrongful death claim against a third party for the death of a non-viable fetus in utero. 898 S.W.2d at 90-94.

         In making that holding, the 4-3 Court stated, "[s]ection 1.205[.2] [ ] sets out the intention of the general assembly that Missouri courts should read all Missouri statutes in pari materia with this section." Id. at 92. However, the majority also stated:

Section 1.205[.2] expressly acknowledges that it . . . is subject to the Constitution of the United States and decisional interpretations thereof by the United States Supreme Court. No party here has raised any such issue in regard to their own, or a derivative, constitutional right.

Connor, 898 S.W.2d at 92 n.8.

         Reconciling and giving meaning to all of the preceding statements in Connor, we hold Missouri Courts should read all Missouri statutes in pari materia (harmoniously) with section 1.205 so long as such a reading does not violate a party's constitutional right afforded to him or her by the U.S. Constitution and decisional interpretations thereof by the U.S. Supreme Court.[16]See Connor, 898 S.W.2d at 92, 92 n.8; Lapponese, 422 S.W.3d at 402. This holding ...


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