Woy v. Woy

737 S.W.2d 769, 68 A.L.R. 4th 1047, 1987 Mo. App. LEXIS 4708

• Court: Missouri Court of Appeals
• Decided: October 6, 1987
• Docket: WD 38277
• Status: Published

Opinions

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 premarital 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 does fairly set forth the facts. The motion to strike is overruled.

Appellant’s first point is that the trial court was prohibited from granting the annulment because respondent, upon learning that appellant was a lesbian and used illegal drugs, ratified the claim of fraud by continuing the marital relationship. She bases her claim of ratification upon this deposition testimony of respondent: “ ‘And then, finally, it started dawning on me that this is not something that was new for Linda. And then Shirley told me that they had done this before we got married and that after we got married, that she and Joe Simon would go over to Joe’s house and have intercourse and a few other things. And then I didn’t go out with her anymore. And that’s when I realized that my wife was bisexual.’”

Respondent's deposition testimony does not amount to an admission that he was aware any time before appellant’s deposition was given on March 2, 1986, that she had engaged in lesbian affairs prior to the marriage. On March 2, 1986, the petition for dissolution was pending and the parties had separated. The deposition testimony reveals nothing about when Shirley told respondent “that they had done this before we got married”. Rather, her testimony at trial that at the time that the dissolution proceedings were going on, she told respondent’s attorney, “what was going on or what you claimed occurred between you and Linda”, and it was the attorney who asked her to come and testify. The only inference, under all the facts, is that the time when respondent realized that his wife was bisexual was on March 2, 1986, when appellant’s deposition was given, which accords with his trial testimony as to that time, and it is not inferable that respondent realized in 1983 that his wife was bisexual, and despite that knowledge, he continued to cohabit with her for the next three years, as stated in appellant’s brief.

Immediately upon learning of appellant’s pre-marital lesbian activities, respondent sought to amend the dissolution petition on March 5,1986. He did not, after acquiring that knowledge, cohabit with appellant, and therefore did not condone, ratify or waive the same. The questions in this case are whether appellant’s known lesbian activities, under the facts of this case, created an affirmative duty on her part to reveal the same to respondent, and whether those known activities prior to the marriage went to an essential element of the marital relationship. See generally, 37 Am.Jur.2d Fraud and Deceit, §§ 145, 146, p. 198, et seq.; and 4 Am.Jur.2d Annulment of Marriage, § 13, p. 448, where it is said, “Public policy demands that integrity of the marriage contract be preserved so far as possible, and fraud necessary to avoid a marriage must be such as is deemed vital to the marriage relationship.” This concept was carried into the case of Watson v. Watson, 143 S.W.2d 349, 350[1-2] (Mo.App.1940), where the fact that a wife misrepresented and concealed from her husband that she was suffering from syphilis was shown by clear, satisfactory and convincing evidence, the court saying, “Such a fraud pertains to an essential of the marriage relationship and obviously entitled plaintiff to an annulment of the marriage. (Citing cases and authority).” See also the annulment case of Kshaiboon v. Kshaiboon, 652 S.W.2d 219, 220 (Mo.App.1983), where the defendant lacked the physical and mental capability to engage in normal sexual relationship with plaintiff, and his only sexual activities with her were of the unnatural type, which were known to him prior to the marriage and which he concealed from her, the court saying, “The sexual relationship is an essential element of the marital relationship and defendant’s concealment of his limitations and preferences in that regard justified an annulment.” Note also Santos v. Santos, 80 R.I. 5, 90 A.2d 771 (1952), a divorce case which had an additional (statutory) ground for relief that the marriage was void or voidable because the wife refused to have normal sexual intercourse, and wanted to engage only in unnatural intercourse, and after three days without consummation, she wilfully left the husband and went to live with a girlfriend of questionable reputation, for whose love she expressed a preference. Although the court affirmed the denial of a divorce, it held, 90 A.2d at page 774[6, 7], that the evidence showed that before and at the time of the marriage the wife knowingly and deliberately concealed from the husband her intent not to consummate the marriage and her design to engage only in abnormal conduct that was repugnant to and destructive of the basic purpose and terms of the marriage covenant, and that the trial justice erred in granting the petition on the ground that the marriage was originally void under the statute.

As appellant states, there was no evidence that she was addicted to drugs, or that she was dependent upon them. There is, however, evidence that appellant used drugs, sniffing cocaine in the presence of Mary Jane Kelly, to whom she stated she had friends to afford her cocaine; appellant smoked marijuana in the presence of Theresa Ann McKinley; and she told respondent’s daughter that she enjoyed using drugs; she had used many; had shot cocaine before; and smoked pot, going over to friends’ houses to party; some close friends were drug dealers; and she had to be careful when she used drugs because respondent did not condone it. Appellant took the Fifth Amendment when asked about her use of illegal drugs, which created an unfavorable inference against her on that issue. Harwell v. Harwell, 355 S.W.2d 137, 141[1] (Mo.App.1962). Her concealment of her drug usage before the marriage is shown by the testimony of Dr. Ross Eugene Woody, whom she told about her usage, and that she was not able to openly do drugs because respondent was adamantly against that use and did not want drugs around the house or any place around him. It is doubtful that appellant’s drug usage, absent addiction, standing alone, would be grounds for annulment, and there is no showing that it would affect respondent’s license to practice his profession, although if generally known ip the community, it might affect his reputation. See Husband v. Wife, 257 A.2d 765 (Del.Super.1969), where the evidence did. not establish that the wife was an addict,; but only that she had been convicted of a misdemeanor in possessing drug paraphernalia, and had periodic disabling usage of drug, held not to be sufficient to establish fraud which went to the very essentials of the marriage relationship. But see also Costello v. Porzelt, 116 N.J.Super. 380, 282 A.2d 432 (1971), where the husband's concealment of actual drug addiction, nonrati-fied by the wife, was sufficient fraud to grant annulment.

Respondent testified that he had heterosexual relations with appellant for a ten year period, about five of which had to be before the marriage took place. Clearly the marriage was consummated and cohabitation took place up to the time the parties separated in September, 1984. Thus, the fact that appellant used drugs and engaged in lesbian activities had nothing to do with consummation of the marriage or with the essential part thereof of sexual intercourse. Respondent testified that he thought they were fine sexually. There is nothing which personally endangered respondent in appellant’s lesbian activities or her drug usage, which was the fact in Watson v. Watson, supra. The marriage was here consummated satisfactorily which is contrary to the facts in Kshaiboon, supra, and in Santos, supra. Since the parties had engaged in normal sexual relations both prior to and subsequent to the marriage, there would exist no basis for appellant to believe that her lesbian activities would go to the very basic essential of normal and usual sexual intercourse, there was not cast upon her an affirmative duty to disclose to respondent her relations with other women. She, of course, made no affirmative misrepresentation of that fact. In Kingsley, “Fraud as a Ground for Annulment of a Marriage”, 18 So.Cal.Law Rev. 214, 234, Sec. 19 (1945), it is said, “Fraud, basically, consists of a misrepresentation of a fact. Ordinarily, such misrepresentation will be by affirmative statement of fact, contrary to the truth. However, there are some things about which the law requires a prospective spouse to volunteer information and a concealment of which will be treated as fraudulent. In this class are pregnancy, venereal disease (and presumably other diseases going to the ‘essentials’), sterility, and similar matters.” The allegation here of appellant’s lesbian activities is akin to one of premarital unchastity or misrepresentation of chastity. In 3 Nelson Divorce and Annulment 2d, § 31.39, p. 322, it is said, “As a general rule, a marriage is not annulable by one of the parties in respect of his or her chastity prior to the marriage. In other words, concealments or misrepresentations of this character are held to fall short of constituting grounds for annulment, for the reason that chastity at a time prior to the marriage is not regarded as vital to the marriage relation.” See these cases along that line: Heath v. Heath, 85 N.H. 419, 159 A. 418 (1932), which involved as a basis for annulment a prior conviction of the husband for adultery, held not to be so serious a fraud on the female as to justify annulment of the marriage; Wetstine v. Wetstine, 114 Conn. 7, 157 A. 418 (1931), where the wife had an illegitimate child before marriage, and the husband, who had prenuptial intimacy with her could not claim divorce for deceit as to her chastity; DuPont v. DuPont, 33 Del.Ch. 364, 93 A.2d 500 (1952), where the husband had premarital adulterous sex with the wife, who told him she had been intimate with at least two other men, thus admitting adultery. Held, the husband was not entitled to annulment; Travis v. Travis, 183 Pa.Super. 273, 130 A.2d 724 (1957), where the wife bore an illegitimate child two years before the marriage, but made no representation as to her chastity, and the husband, who made no ascertainment of previous incontinence, was not entitled to annulment. But see Reynolds v. Reynolds, 85 Mass. 605 (1862), where a younger husband married an older woman, who represented that she was chaste, when in fact she was pregnant by another man. There was no condonation and the annulment was granted. What may be gleaned from all these cases, including Watson, Kskaiboon, and Santos, supra, is that annulment of marriage is the exception and not the rule, and must be granted only upon extraordinary facts.

Appellant’s lesbian activities are reprehensible conduct not in accordance with the normal mores of society. Respondent, on the other hand, has had extramarital misconduct. What ever equities these parties are entitled to with regard to division of marital property, maintenance and appellant’s right to attorneys’ fees may be more appropriately determined in the dissolution proceedings in which both parties have pleaded that the marriage is irretrievably broken. The harsh remedy of annulment of the marriage, which leaves appellant with nothing therefrom, is inappropriate under the facts of this case. Surely the appellant’s contribution, even as a homemaker for about 4V2 years, may be taken into account in dissolution of the marriage proceedings. If the judgment were affirmed, it would result in an imposition of a penalty and a forfeiture of any rights of appellant in marital property which appellant may have acquired during the marriage.

The judgment is reversed and the case is remanded with directions to reinstate respondent’s original petition and appellant’s counterclaim for dissolution of marriage, and for further proceedings thereon.

BERREY, J., concurs and files separate concurring opinion. MANFORD, J., dissents in separate dissenting opinion filed.