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

Court of Appeals of Missouri, Eastern District, First Division

October 3, 2017

K.M.M., Petitioner/Appellant,
K.E.W., Respondent/Respondent.

         Appeal from the Circuit Court of St. Louis County Honorable Douglas R. Beach

          SHERRI B. SULLIVAN, J.


         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 210.824[1] and one for breach of contract of a custody agreement, and in denying her claim for third-party custody or visitation pursuant to Section 452.375[2] 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 her to set up a consistent visitation schedule. Kate initially agreed to allow Kathleen, L.M., and E.M. to continue to see Child and the parties arranged several visits.

         On February 8, 2015, the parties met for a visit and then went to dinner. Kate testified Kathleen had previously asked Kate where she currently lived and about Child's daycare, and Kate told Kathleen she did not want her to know because she was afraid of Kathleen. At the dinner, E.M. asked Kate about Child's new school. When Kate appeared hesitant to answer, Kathleen whispered to Kate she knew where Kate lived and Child went to school, and she had not tried to "kidnap" Child and that Kate was fine. Kathleen testified she was attempting to reassure Kate she was not a threat to her or Child. Kate testified she perceived this to be a threat, in part because it was whispered to her and Kathleen appeared overly focused on Child during the visit. Kate testified the visit frightened her and so she made the decision to terminate contact between Kathleen and Child. In its judgment, the court acknowledged it did not witness the encounter firsthand but found nothing sinister in Kathleen's remarks.

         On February 12, 2015, Kate and Kathleen met for coffee at which time Kate informed Kathleen she would never allow Kathleen or the other children to see Child again, and she would call the police and get a restraining order if Kathleen attempted to contact them.

         After this conversation, Kathleen had several interactions with Child. Kathleen suggested that three of these occasions were coincidental, such as seeing Child and Kate at a nearby park. On one occasion, Kathleen intentionally approached Child while he was playing outside at his new daycare. On another occasion, Kathleen appeared at Kate's brother's house and got out of her car and took a video. The court believed these intentional interactions could be seen as concerning or scary to Kate. David Clark, Ph.D. (Dr. Clark), an expert who performed a psychological evaluation of the parties, opined Kathleen did not understand boundaries. The court agreed with Dr. Clark's conclusion that Kathleen approaching Child at his daycare was an act of poor judgment but recognized Kathleen was grieving Child's loss after being abruptly cut off from him. Kathleen has not seen Child since April 2015.

         The court found the relationship between the parties and the family unit became strained after Child's birth. Kate testified that after Child's birth, she observed Kathleen avoid the children by going to her room to sleep, sleeping on the family couch with her back to the family, and by spending time outside the house. Kate testified Kathleen would "ice out" Kate, L.M., and E.M. when she was angry or upset by ignoring them or withholding attention and affection and that she had begun to do this to Child. Kate testified she believed this amounted to psychological abuse. Kate testified the household was chaotic. Kathleen agreed the house was chaotic but not in a way that would put Child at risk.

         The parties testified they had different parenting styles. Kathleen testified Kate is a good mother to Child and is not unfit. Kathleen testified Kate complained about her parenting of L.M. and E.M., specifically indicating Kathleen needed to be stricter with L.M. Kathleen testified L.M. was not an easy child to parent and discipline and that she had L.M. evaluated twice at Kate's behest during their relationship. Kathleen testified L.M. has since been reevaluated and received a diagnosis of Attention Deficit Hyperactivity Disorder. L.M. is not currently receiving counseling because his behavior has improved but has received it in the past and it is available to him in the future. Kathleen testified she has sought counseling, which includes discussions on how she can be a better parent.

         Kate asserted the home environment presented an unsafe environment for Child, in particular L.M.'s conduct and Kathleen's parenting and alcohol use. Kate believed Kathleen was too passive and she should have been more active in parenting. Kate testified Kathleen would ignore L.M.'s behavior and then would explode in anger that was out of proportion. Kate testified these episodes would end with the whole house crying and Kathleen exiting the home. Kate testified she witnessed Kathleen drag L.M. through the house, throw him on a bed, and hold him up by his neck against the wall. While the trial court made no specific factual finding as to Kate's allegation, it did not find Kathleen was unsuitable to parent but instead concluded Kathleen was capable of being a good parent to Child. Furthermore, Dr. Clark found Kate's allegations regarding Kathleen's abuse and neglect of the children unsupported by collateral sources.

         Kate testified she felt Kathleen's inadequate parenting of L.M. and E.M. and their behaviors toward Child were unsafe and dangerous. By way of example, Kate presented the court with a video of the children playing with Child when he was a baby to support her belief the play was too rough. The court, however, disagreed with Kate's assessment, believing the video evidenced typical sibling behavior as opposed to a dangerous or unsafe situation. The court found no evidence L.M. and E.M.'s behaviors or Kathleen's parenting of them diminished Kathleen's ability to provide an adequate and stable environment for Child. The court also found Kate's stated concerns that L.M.'s teasing or "rough" play with Child rose to a dangerous level not supported by the evidence.

         The court ordered the parties to be seen by Dr. Clark for a psychological evaluation. The initial purpose of the evaluation was to address Kate's accusations that Kathleen was emotionally unstable; was depressed and/or suicidal; displayed a pattern of out-of-control drinking, including drinking and driving with her children and attempting to do so with Child; is or has been a dysfunctional parent to the children; and has stalked Child. Dr. Clark diagnosed Kathleen with Major Depressive Disorder in Full Remission, finding no indication Kathleen's parenting competence was compromised by her depression or that it was necessary for her parenting time with Child to be restricted in any way due to the condition. Dr. Clark concluded Kathleen did not meet the diagnostic criteria for Alcohol Use Disorder as defined by the DSM-V and found no evidence alcohol impaired Kathleen's functioning in any areas of her life.

         After Child's birth, Kate told Kathleen she did not want her to drink but Kathleen continued to do so. Kate asserted Kathleen came home intoxicated once or twice a week and would drink and drive both with and without the children in the car. Kathleen testified she made so many changes at Kate's request, she decided to pick her alcohol use as the one thing she would not change. Throughout trial, Kathleen maintained Kate exaggerated her alcohol use. Kathleen indicated she had never been told by anyone besides Kate that her drinking was a problem or that she needed help for her drinking. The court found this assertion was not necessarily true and believed the credible evidence was that alcohol was an issue in Kathleen's life. For example, the court noted Kathleen's inappropriate posting of photographs on social media featuring her children posing with alcohol; and two instances when Kathleen became so intoxicated she could not remember the previous day's events or did not know where she was. The trial court found the credible evidence indicated Kathleen's past alcohol use had occasionally hindered her ability to function and it was clear alcohol had been an issue in the parties' relationship, with Kathleen's alcohol use and alleged abuse a frequent subject of counseling and ...

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