Woy v. Woy

LARETTE, Appellant, Anthony J. M.D., DOERHOFF, Respondent.

Carl R.

No. 39172. WD Appeals,

Missouri Court District.

Western

Oct. 1987. Larette, pro se.

Anthony J. Webster, Gen., Kelly Atty. L.

William Gen.,

Mescher, City, Atty. Asst. Jefferson respondent. TURNAGE, P.J.,

Before GAITAN,

BERREY JJ.

ORDER

PER CURIAM.

Appeal from of medical mal- dismissal 84.16(b).

practice Affirmed. Rule action. WOY,

George Respondent, H. Krauskopf, University of West Vir- Joan WOY, Appellant. Linda L. School, Campus, Mor- ginia Law Evansdale No. WD 38277. Hambrick, Jr. gantown, W. Va. J.C. Appeals, Brown, Missouri Court of Pansing City, Kansas and Jane Blair, Schulz, Bender, Western District. Maher & appellant; of counsel. Oct. 1987. Hankins, R. and Thomas E. John Shank Stahl, Gladstone,

Gunn, respon- Hall & dent. PRITCHARD, P.J., and

Before BERREY, JJ. MANFORD PRITCHARD, Judge. Presiding petitioner, On November filed for dissolu- George Woy, H. Woy. Park, Kansas, against being tion of Linda Louise land the intimacies a She filed her answer and counterclaim on by year initiated A or more Linda. later 27,1984, admitting allegation December there was another intimate contact be- affirmatively pleading and the mar- Shirley tween and Linda was initi- which irretrievably broken. George was gentleman. years ated a About three reply, a joining filed issues dissolu- ago, discussion, during a Shirley Linda told Then, 5,1986, March tion. on after Linda’s about another lesbian affair in which she given, George deposition was filed a motion was involved with another woman and her to amend his for dissolution invitation, husband. At Shirley Linda’s (Count II), adding seeking a count annul- George. During to bed with the mar- 2, alleged The motion on ment. that March riage, Shirley performing observed Linda 1986, gave Linda her in which man, oral sex on another who was Joe she admitted that she had had a venereal years ago, three Simon. About from Janu- was no disease evidence that alle- [there March, ary through Shirley went to bed gation], engaged had in a lesbian relation- George with and Linda three times. Shir- ship prior marriage, and she also ley George also had sex relations with on pleaded Amendment, the Fifth and refused No took other occasions. lesbian activities questions concerning her answer use of George. place in front of cocaine, illegal drugs, amphet- such as Mary Kelly, neighbor George Jane a amines, George marijuana. LSD and al- Linda, and testified in the course of leged if he had known of these mat- past years, five or six Linda told her ters he would marry have refused to Linda George things that if (the known about the marriage having on occurred March 29, she had done in 1980). past, everything, he probably would not her. Lin- have married The motion to amend was sustained and George da also told her that she knew filed, alleged: Count II was which That at girlfriend lover, a who used marriage ceremony, George the time of the said, joke’s him”. she “The on About three was unaware that Linda had in a brought years prior, powder Linda a white woman; affair with another home, Mary put piece Jane’s a little on disease; she had suffered from a venereal counter, paper on the kitchen divided it dependence illegal she drugs, had a on lines, put into two one end of a straw to, cocaine, LSD, including, but not limited in her nose and the other end one of the marijuana amphetamines; and had he supposed lines. One of the lines was known of these facts at the time of the Mary Jane, it, so he would but she afraid have refused to have respondent George Mary Linda took the line. further al- When leged touching the facts were material Jane asked Linda how she afforded co- aspects vital caine, of the marital relation- she said she had friends. On one Linda, ship, concealing and that “in these occasion, Mary Linda came to Jane’s home fraudulent, petitioner, facts from acted coat, wearing opened beaver she spe- malicious and manner willful with Mary and showed Jane and her husband petition- intent to cific deceive defraud up. she was naked from the waist On prayed er.” It was for an order of the occasion, another Linda stood declaring purported got naked in front of them before into she binding be null of no and void and force recall, jacuzzi. Mary their On Jane testi- pretended and effect from the time it was fied that she summer saw to be solemnized. George’s younger daughter, Linda and Kimberly, swimming issue, pool. nude On the annulment this evidence pool They got two or Shirley out three was adduced: Jean Charlton testi- times, side, Woy hugged stood side fied that she first met Linda about six workman, years thirty A ago. Prior with seconds. male George of, pouring Linda had whom aware intimate physical away. Shirley’s contact at home in Over- concrete about ten feet ago, which was seven George affair about McKinley knew Ann Theresa gift. brought a idea—she even Shirley’s vacation, occasion, when on Linda. On Linda told smoking marijuana. Linda was he is an testified that George Woy H. an affair with anoth- she had Missouri, Theresa that Liberty, surgeon in orthopedic a woman. er man and in excess gross W-2 income $500,000. he knew He denied that George’s daughter, Piper Linda told drug usage of her past, lesbian Linda’s using drugs, enjoyed she Woy, that Dawn marriage, and testified the 1980 prior to many. used She’d shot cocaine she’d “that things, he of those if he had known that smoking pot, and enjoyed That she before. deposi- In his married her. not have would go to friends’ houses she would over years tion, three he testified that about her said that some of party”. She also to inci- the threesome bed and after before drug had dealers. She close friends were sitting dent, Shirley and Linda he saw drugs when she used to be careful Shirley giggling. watching TV and bed should not George did not condone it and Linda had “done him that she and told it, so she would have anything about know afterwards, marriage and this” before her to do it. Linda told go places (Shirley?) go not out with then he did and was gay bars while she she would when I realized anymore, “and that’s George, I married to “and believe before”. my wife was bisexual.” friends, occasion, Piper’s when Su- On one court found these facts: trial Martin, were in the san Cunkle and Jeff 29, 1980; peti- March parties were married pulled suit. jacuzzi, Linda off Susan’s swim here) long-standing (respondent is a tioner These admissions in Linda’s practiced Clay County, and has resident of surgeon had a lesbian orthopaedic were read into evidence: She profession his as marriage Shirley prior continually; prior her to the time of affair with Charlton here) frequently used respondent (appellant George, and she doubted that cocaine illegal drugs marijuana, she told him about it. She refused to an- LSD, peti- she concealed from and drugs, questions illegal use of swer drug tioner, who, if he had known of the marijuana and on the amphetamines, LSD her; use, prior to not have married would grounds incrimi- the answers would engaged in lesbi- marriage, respondent trial, her. At she denied that she was nate peti- she concealed from an affairs which lesbian, again sexual but admitted tioner, he of the lesbian and had known prior Shirley contact with her; affairs, not have married he would genitals involving person of one and him, gay bars frequented she unknown to mouth, tongue, hand or anus of another their mutual marriage, and told prior to the sex, she did not tell person of the same use; drug she affairs and friends of lesbian marriage. Af- George about it before the friend of clothing of a female removed the George, ter she had a lesbian she guest daughter the friend was a his while Af- Shirley George there. affair with home; daugh- Woy she caressed incident, Shirley ter the when she workmen; she nude in front of ter which, George (during accord- bed up, exhibited nude from the waist herself occurred), Linda, ing activity lesbian she coat, in front of wearing beaver while George, told about the en- marijuana neighbors; she used cocaine Shirley, George counter with and Linda and associates, and re- in front of friends and continued to have normal sexual relations. information quested they not disclose this swimming pool re- She denied the incident him; her lesbian he did not discover by Mary Kelly. lated Jane prior to only several weeks tendencies until he sexual rela- Joe Simon denied that hearing; he has the March during marriage, but drugs tions with Linda her her use of illegal or condoned used them; not be credibility he known her about 20 and had should and that Woy or to testimony of Linda given her. He witnessed in sex with that an unfa- It concluded in lesbian Joe Simon. was Shirley participating Linda and against mony vorable inference should be at at drawn trial that the time that Woy by going on, Linda reason her proceedings refusal dissolution questions respondent’s on told attorney, go- answer self incrimination “what was grounds; ing you her what claimed occurred concealment of be- Linda”, affairs, pre-marital you tween pre- and was attor- ney testify. drugs, who asked her come and marital use constituted fraudu- only inference, facts, under all lent per- and material concealments which the time when tained to realized relationship, that his wife was bisexual on March which entitled him to annul was appellant’s deposition when giv- It was ordered an- en, which testimony accords with his trial nulled and the and counterclaim time, as to that and it is not inferable that for dissolution of be dismissed. realized 1983 that his wife Respondent has filed a motion strike bisexual, despite knowledge, Curiae, Legal brief Amici Women’s he continued cohabit with her for the Fund, Legal Defense NOW Defense and years, next three in appellant’s as stated Fund, Education and American Civil Liber- brief. Missouri, upon ties Union of Western Immediately upon learning of appellant’s ground it that fails to forth a set fair and pre-marital activities, respondent concise statement of the facts relevant sought amend the dissolution questions presented for determination 5,1986. not, March acquiring He did after argument. without The brief has been ex- knowledge, appellant, cohabit with fairly amined and it does set forth the condone, ratify therefore did not or waive facts. The motion to strike is overruled. questions the same. The in this case are Appellant’s point first trial appellant’s whether known lesbian activi prohibited granting court was from an- ties, case, under the facts of this created an respondent, nulment upon learning because duty part affirmative on her to reveal the was a il- lesbian and used respondent, same to and whether those legal drugs, ratified the claim of fraud prior known activities went continuing the marital She to an essential element of the marital rela bases her claim of ratification this tionship. generally, See 37 Am.Jur.2d “ deposition respondent: testimony ‘And Deceit, 145, 146, 198, Fraud p. et §§ then, finally, dawning it started on me that seq.; 4 and Am.Jur.2d Annulment Mar this something is not that was new for 13, riage, 448, p. said, where it “Public § Shirley they Linda. And then told me that policy integrity demands that of the mar this got done before we married and preserved possi contract be so far as got married, that after we that she and Joe ble, necessary and fraud to avoid a mar go Simon would over to Joe’s house and riage must be such as is deemed vital to things. have intercourse and a few other marriage relationship.” concept This And then I anymore. didn’t out with her was carried into the case And that’s I my when realized that wife Watson, 143 (Mo.App. S.W.2d 350[1-2] was bisexual.’” 1940), misrepre where the fact that a wife Respondent's deposition testimony sented and concealed from her husband does not amount to an he admission that suffering that she was syphilis appellant’s dep was aware time before clear, convincing satisfactory shown 2, 1986, given osition was on March evidence, saying, “Such fraud prior she had in lesbian affairs pertains an essential of the marriage. peti On March relationship obviously plaintiff entitled pending tion for dissolution was and the (Citing to an annulment of the separated. authority).” tes cases and See also the annul Shirley Kshaiboon, timony reveals about when ment case Kshaiboon v. 652 (Mo.App.1983), told “that had done this 220 S.W.2d where the Rather, got physical before we married”. testi- defendant lacked the and mental Harwell, on that Harwell v. engage in normal sexual rela- issue. capability to (Mo.App.1962). tionship plaintiff, and his sexual Her S.W.2d 141[1] usage drug her were of unnatural before the activities with concealment of her him type, testimony known to to the marriage of Dr. shown her, he concealed from and which Eugene Woody, she told Ross whom relationship saying, the court “The sexual usage, and that she was able to is an element of the marital rela- essential openly drugs do tionship concealment of his and defendant’s adamantly against that use and did not regard preferences limitations and drugs any place want the house or around justified annulment.” Note also Santos him. around It is doubtful Santos, R.I. 90 A.2d 771 addiction, drug usage, standing absent (statu- divorce had an case which additional alone, annulment, grounds for would be ground tory) for relief that the showing that it and there no would af was void or voidable because the wife re- respondent’s practice pro fect license to intercourse, fused normal sexual to have ip fession, although generally if known only in wanted unnatural community, reputation. might it affect his intercourse, days three and after without (Del. A.2d 765 Wife, See Husband v. consummation, wilfully left the hus- Super.1969), the evidence did. not where girlfriend band and to live with a addict,; establish that the wife was an but questionable reputation, for whose love she only that of a mis she had been convicted expressed preference. Although drug parapherna in possessing demeanor divorce, court affirmed the denial of a lia, disabling usage of periodic had held, 774[6, 7], 90 page A.2d at that the drug, held not to be sufficient establish evidence showed that before the and at very fraud which essentials of the marriage time of the the wife knowingly marriage relationship. But see also deliberately concealed from the hus- Porzelt, N.J.Super. 380, v. 282 Costello band her intent not to consummate (1971), A.2d where the husband's con marriage design and her in addiction, drug cealment of nonrati- actual repugnant abnormal conduct that was wife, fied was sufficient fraud to of the purpose destructive basic grant annulment. covenant, marriage terms of the and that justice trial erred in granting peti- Respondent testified that he had tion on ground marriage was appellant for a heterosexual relations originally void under statute. year period, ten five of which about had marriage place. Clearly took be before the states, appellant As no there was marriage consummated and was cohab drugs, evidence that she was addicted or place parties up took to the time the itation dependent upon that she was them. There Thus, in separated September, 1984. is, however, appellant evidence that used appellant drugs engaged fact that used drugs, sniffing presence in cocaine of nothing in lesbian to do activities Mary Kelly, Jane to whom she stated she marriage or consummation of the with the cocaine; appellant had friends to afford her part essential thereof of sexual intercourse. marijuana presence smoked of thought Respondent testified that he McKinley; Theresa Ann and she re told sexually. fine There is were which spondent’s daughter enjoyed using that she personally endangered respondent appel in drugs; many; she had used had shot co drug usage, or her lant’s lesbian activities before; pot, going caine and smoked over Watson, in which the fact Watson party; to friends’ houses to some close here supra. consum drug dealers; friends had to she satisfactorily contrary drugs mated be careful when used Kshaiboon, supra, the facts San Appellant did not condone it. tos, supra. parties Fifth Amendment asked Since took the when both to and illegal drugs, in normal sexual relations her use which cre about subsequent there would against inference to the ated unfavorable (1957), no exist basis for to believe that A.2d 724 where the bore an wife very her lesbian illegitimate activities would child two before the mar- basic essential of normal and usual sexual riage, representation but made no as to her intercourse, there was not cast her an husband, chastity, and the made no who duty affirmative to disclose to previous incontinence, ascertainment She, her relations with other women. of was not entitled to annulment. But see course, misrepresenta made no affirmative Reynolds Reynolds, (1862), 85 Mass. 605 Kingsley, tion of that In fact. “Fraud as a younger where a husband an older Marriage”, Ground Annulment of a 18 woman, represented who that she was So.Cal.Law Rev. Sec. chaste, pregnant by when fact she was said, “Fraud, basically, a mis consists another man. There was no condonation representation Ordinarily, a fact. granted. and the annulment was What misrepresentation will be affirmative cases, may gleaned from all these in- fact, contrary statement of to the truth. Watson, Kskaiboon, Santos, cluding However, there things are some supra, is that annulment of requires prospective which the law rule, exception and not and must be spouse to volunteer information and a con granted only upon extraordinary facts. cealment which will be treated as fraud Appellant’s repre- lesbian activities are ulent. In this class pregnancy, are venere hensible conduct accordance with the (and al disease presumably other diseases society. Respondent, normal mores of ‘essentials’), going sterility, and sim hand, the other has had extramarital mis- allegation ap ilar matters.” The here of equities parties conduct. What ever these pellant’s lesbian akin activities is to one regard are entitled to with division premarital unchastity misrepresentation property, maintenance and chastity. 3In Nelson Divorce and An right attorneys’ may lant’s fees be more 2d, 31.39, 322, said, p. nulment it is “As a § appropriately determined the dissolution rule, general is not annulable proceedings parties in which both respect of his pleaded irretrievably chastity prior In oth remedy broken. The harsh of annulment words, er misrepresenta concealments or marriage, appellant which leaves tions this character are held to fall short therefrom, is inappropriate with constituting grounds annulment, for Surely under the facts of this case. chastity prior the reason that at a time to contribution, appellant’s even as a home- marriage regarded is not as vital to the years, maker for may about 4V2 be taken marriage along relation.” See these cases into account in dissolution Heath, that line: Heath v. 419, 159 85 N.H. proceedings. If judgment af- were (1932), A. 418 which involved as a basis firmed, it imposition would result in an a annulment a prior conviction of the hus penalty rights and a any forfeiture adultery, band for held not so serious property a justify fraud the female as to annul may acquired during lant the mar- Wetstine v. Wetst marriage; ment of the riage. ine, (1931), 114 A. Conn. 157 418 where judgment the wife had is reversed and the illegitimate child before case marriage, husband, remanded with directions to re- pre who had reinstate original nuptial spondent’s intimacy with her not could claim counterclaim for Du chastity; divorce for deceit as dissolution of DuPont, Pont v. proceedings further 33 93 and for thereon. Del.Ch. A.2d 500 where the husband premari wife,

tal adulterous sex with the who told BERREY, J., concurs and files him she had been intimate with at least two separate concurring opinion. men, Held, admitting thus adultery. annulment; J., MANFORD, the husband was not separate entitled dissents in Travis, Travis v. Pa.Super. 273, dissenting opinion filed. of the

BERREY, Judge, concurring. tion or concealment defendant suffering syphilis fact that she was primarily of this case revolves The nexus clear, satisfactory, and convinc- shown activity” which oc- single a “lesbian about ing pertains fraud to an evidence. Such a prior marriage. curred relation and obvi- essential of Woy Linda lived to- Apparently Dr. ously plaintiff to an annulment entitles they five before gether about From facts herein the marriage.” legally joined as husband and decided comparable is not with either instant case Then, they for another wife. cohabitated or Kshaiboon. marriage soured years. four or five many shares of the concerns writer proceedings were com- and dissolution expressed in the The issue in this dissent. During Woy a Dr. menced. is, Linda case did the failure of to disclose engaged in a learned that his wife had lesbianism act of a year lesbian affair about before con- to and constitute a fraud of amount married. Linda had another lesbian annulment. cealment such to warrant year encounter about a and one-half later “menage party and man: a with the same a experience to one lesbian Linda admits illegal drugs trois.” That she often used Shirley Charlton and denies she told reading thorough clear of the from a Shirley of another lesbian affair. Charlton transcript disputed. and cannot be Linda after the she had testified Shirley Woy and Dr. supports general proposi- This lesbian affair writer Linda, may present. According Woy tion that Amici Curiae be of was Dr. briefs engage in “Three- always value. The research furnished wanted to may points Woy offer additional Linda and Subsequently, briefs some.” Dr. might It is otherwise overlook. nev- in “normal” sexual continued legitimate in a er well stifle debate free relations. society, though may totally even we dis- asked: Linda was agree principles with the aim and Q. Why you George did tell organizations tendering such briefs. For your you affair before majority this reason I concur with the him? overruling respondent’s motion strike any point. A. There didn’t seem to be the briefs. He didn’t bare his soul me. He Both the cite dissent Kshai ever ask either. didn’t Kshaiboon, (Mo. boon v. 652 S.W.2d testified that after the threesome Linda App.1983), opinion. reason as a for their Woy she told Dr. of the lesbian incident physical Edward lacked the Kshaiboon Woy Dr. before the denies capability engage mental to in a normal un- knowledge of Linda’s lesbian activities relationship plaintiff sexual her is no til was taken. There only activity following sexual with her the allegation required grati- lesbian that Linda

marriage unnatural. Based on this it was fication to in normal sexual activi- marriage argued could be the was marriage ties in the bed. The therefore not consummated. evidence A supported inference that similar scenerio to the instant case Kshaiboon an Freitag appears Freitag, Edward of this condition 40 Misc.2d Kshaiboon knew 163, plaintiff. The the it from court 242 N.Y.S.2d 643 wherein concealed stated, plaintiff’s request for annul relationship further “The sexual is denied sought Freitag, of ment. In the wife annuli an essential element the marital relation marriage ment ori ship and of his of her husband defendant’s concealment he grounds marriage performances regard limitations in that that before Id., fraudulently In from her his homo justified an at 220. withheld annulment.” Watson, parties inti proclivities. 350 sexual S.W.2d un mate “not (Mo.App.1940), the court reaffirms horn- before misrepresenta- happy” honeymoon and three weeks book law that “fraudulent following honeymoon required their cohabitated une- to the kind nature of fraud annulment, ventfully. impo- deception by Then the husband became an one of warrant character, morality, tent and unable to fulfill his marital con- as to hab- its, wealth, he to position generally tract. Several weeks later confessed or social her his held homosexual acts and insufficient.” noted, “aghast.” Freitag Id. The court in This finds writer in this case the reading of “After the record the trial and of not rise activities Linda did plain- submitted counsel for briefs interferring of the level with the essentials tiff, the court unable to conclude that we relation, the marriage making it im- homosexuality have here a true case of possible perform the duties and obli- that the condition of the defendant incur- gations of marriage Both able. before after A corollary question to the instant couple admittedly did have mutual heter- escapade enough whether Linda’s orientation, satisfactory apparently osexual might strike the invalid be wheth- added.) Id., plaintiff.” (Emphasis Woy and, such, er Dr. is a wife beater at 242 N.Y.S.2d 643. perpetrated warranting a fraud on Linda This writer notes: declared void. On one degree of fraud sufficient to vitiate he occasion struck Linda and told his mar- ordinary contract will afford suffi- during counselor of the event and ground cient of a the annulment mar- stated, course of the trial “That’s the riage. party It is not sufficient that the beating I can time remember Linda.” relied representations false For I the reasons stated herein concur in deceived, important or that and es- opinion PRITCHARD, J. sential facts were concealed with intent to deceive. The relation is a MANFORD, Judge, dissenting. regulated by controlled and status con- I respectfully must dissent. public policy par- siderations which are ** general quarrel regarding No is made rights parties. amount to the majori- the factual account forth set contrary public policy It is annul a ty opinion. for concealment woman unchastity prior marriage. Ante- One matter needs clarified at the nuptial ground incontinence is not a outset, majority opinion however. The dis- annulment for divorce. Not even does overruling closes the of a motion to strike previous the concealment of unchaste the briefs amicus curiae submitted and immoral behavior vitiate a mar- Fund, Legal Women’s Defense Le- N.O.W. for, although riage; this seems to strike Defense, gal Fund Education and the yet pub- into the essence of the contract American Civil Liberties Union of Western otherwise, policy pronounces lic argument, Missouri. At the time oral opens marriage gateway repen- as the opinion, the author then (Citations omitted.) tence and virtue. attempted presiding, to overrule the mo- objected tion. This writer and the third added.) (Emphasis Browning v. Brown joined objec- member of division (1913). ing, 89 Kan. P. tion. motion was ordered taken with above, As stated fraud must majority opinion the case. The now de- very the essence of the marital contract to the motion This clares overruled. writer marriage. the vitiate The fraud must be support ruling. only does not such It can something essential rela- presumed that the third member of the tion, performance making impossible its supports division now recommends and dangerous its continuance or life. to health ruling such because he has embraced and Bielby Bielby, v. 333 Ill. 165 N.E. approved majority opjnion. Heath, (1929). 233 The court in Heath v. sure, sparsity 85 159 N.H. A. stated: To be there is a of cases directing setting the differences definition of our state aside of mar- “Whatever majority s portion first As to the of annulment. under the rule ital contracts above, interesting to note it is question appear to have dealt with Two cases discloses, Watson, nor Kshaiboon 143 neither They are Watson question. showing require, a certainly does not (Mo.App.1940)and Kshaiboon and S.W.2d This (Mo.App. duty” to reveal. Kshaiboon, any 652 S.W.2d “affirmative opin- by majority 1983). created is an element achieve the result simply to ion herein its result majority opinion predicates The Indeed, the cases researched reached. appel- presumption that upon the incorrect “duty”. not disclose such this writer do duty to disclose her had no affirmative lant opinion majority is clear to see how It respondent “and wheth- lesbian behavior position, gets itself into such prior to the mar- those known activities er on annulment have limited number of cases of the riage to an essential element question on the basis disposed of the relationship”. marital fraud majority then refers to fraud. The prem- portion majority The second Am.Jur.2d, subject deceit as a within and by mere reference simple ise is to address satisfied majority becomes The upon the record. to the evidence “legal duty” requirement of a adopting the learned first record reveals in the discussion on that term is utilized during pre- behavior fraud and deceit. discovery. Not did trial suggested by infra, it is As discussed conduct, immediately repudiate appellant’s unique relationship in- that the this writer indicates) (as clearly evidence re- but requires that tended a marital contract likely spondent would not particular deal with it in a the law should appellant had the fact of lesbian behav- any disputes rela- manner and not resolve prior him to the mar- ior been known to principles applicable tive thereto under riage. quite is also clear that evidence Indeed, is a there nonmarital contracts. appellant and admitted that the mar- knew in this nation which has body whole of law had her would not have occurred actions, (i.e., cus- just that dissolution done re- lesbian behavior been made known to support, and tody, property, marital child spondent. Although appellant declared maintenance) yet majority herein lesbian, freely that she not a ad- princi- apply definitions and has chosen to mitted to encounters with another fe- two con- ples applicable to nonmarital more male, once and once contracts. Before dis- tracts than marital subsequent There was however, exam- point, this let us cussion of swimming where she had evidence been applies if it “duty” rule and see ine the daughter respondent’s in the nude and herein, prior rules laid and if it is within two, occasions, repeated exited by our courts. down touching. Addi- pool tionally, there is evidence wherein excep- majority opinion does not take respondent’s hot lant was tub with rulings in Watson Kshai- tion to the friends, daughter appellant and her of these Let it be assumed both boon. bathing suit of one of the removed was ordered cases hold that an annulment daughter’s female friends. fraud. Let it be further upon the basis of duty that there was a breach There is no doubt that the evidence was assumed “duty breached” Wat- support finding by the trial both cases. sufficient to knowledge of the exist- is a son was the wife’s court as the trier of fact concluded, syphilis her con- pre-marital It cannot as is done ence of lesbian. Kshaiboon, the In opinion, cealment of fact. majority behavior knowl- “duty was the husband’s element of the breached” did not to “an essential physical edge of the mental and relationship”, lack rela- engage in a normal sexual capacity facts circum- opinion, based concealment record, tionship his wife and the simply has with stances this concluded that It can then be the incorrect conclusion. of that fact. reached present cases are likened to the case is the condonation of her lesbian behavior both spouse possessed pre- pursuing to the extent of her assertions knowledge and that from within an for This must marital concealed action dissolution. so, spouse prior marriage. majority other to the be concludes supports appellant’s the finding merely The evidence herein lesbian behavior was appellant pre-marital unchastity. knew her lesbian behavior did not disclose it to society is While it obvious our has respondent, and indeed admitted that re- changed change and continues with the spondent probably would not process time, believe this writer cannot her if lesbian behavior had been dis- society point being a that our is at respondent. closed willing homosexuality a life- to embrace as style worthy recognition sup- are When Watson and Kskaiboon com- of social Further, port. present case, pared with the it is obvious this writer cannot believe desirous, willing, opinion society that our is or even majority what has concluded. pronouncing majority opinion our court’s that homosexu- has ruled that an un- ality merely To Watson) unchastity. is akin to venereal disease disclosed is a {in sure, unchaste, such behavior it is is but majority opinion basis annulment. The far certainly more than that and is no has ruled that behavior abnormal sexual {Kskaiboon) manner conducive to a wholesome marital is basis for annulment. fact, In relationship. reprehensible such However, when faced with homosexual be- behavior is a direct affront to a havior, wholesome (lesbianism herein), majority relationship, marital not mention opinion such dismisses behavior mere reprehensible is in all behavior also unchastity prior to the This con- relationships social additional particularly puzzling light clusion marital majority opinion’s ap- declaration that pellant’s “reprehensible lesbian behavior pre-marital If appellant’s post-mari- not in conduct accordance with normal any tal lesbian behavior is not relative to By reasoning of society”. mores set essential element relation- majority opinion, in the forth it must follow ship, any then can it be said that conduct in pre-marital pregnancy, dis- venereal any beastiality form ever will be? What of ease, behavior, abnormal sexual sterili- might spring or other conduct which beyond ty unchastity, are serve as a forth human mind? In other annulment; basis but that homosexual words, beastiality would be mere unchasti- not, pre-marital behavior homosexu- ty? reasoning If employed we follow the is, ality akin unchastity. The unsound- opinion, in the majority answer would reasoning of such ness is obvious. Fur- yes. have to be ther, such reasoning unsound does not directly ap- are Kskaiboon equate majority opinion’s with the declara- plicable present case and should appellant’s rep- tion that lesbian behavior is majority’s apply, even under the of a view rehensible and accord normal required applicable duty. Appellant of society. mores behavior, “duty” to disclose lesbian legal basis, purely

On the result such behavior is no different than the Watson, majority reached flies face of venereal disease element certainly both The conflict was abnormal within the sense Watson and Kskaiboon. Thus, it must asked: Does that term under obvious. Kskaiboon. cause a distinction to evidence herein majority rules in Wat- cannot avoid be drawn? The factual account set forth simply upon son and Kskaiboon reference clearly dispels any doubt be- disclosure distinguished that this case should not be during proceeding, havior dissolution Kskaiboon, supra. from either Watson after the fact seeks, reality, relationship spanning

In in a almost what and ob- sexual reasoning ig- simplified majority opinion supports, years. what the ten Such viously disputes ous which have arisen from mari- ñores the fact that the lesbian behavior First, respondent appellant only became known to tal contracts. our courts have made relationship of the parties after the disclosure the sexual al- many must be considered in behavior most an exclusive criteria in too light specific majority reference cases. This is evident within the whether would have entered suggests appellant’s les- opinion which relationship into the marital to do “with the bian behavior lesbian behavior been disclosed to the marriage], part essential thereof sexu- [the marriage. The evidence is clear that re- al intercourse.” It is submitted that the have, spondent appel- would not and indeed majority opinion, many line with other proba- lant concedes that would cases, concluded that sexual inter- has have, bly not entered into the rela- marital course is the one exclusive basis of the tionship if disclosure had been made. That Indeed, relationship. marital sexual rela- prospective is the within which this case relationship tions within the marital are a placed, and it is must be obvious that important part vital and of that relation- respondent’s lant’s lesbian behavior and re- ship, merely pleasura- whether viewed as jection goes directly of such behavior pro- ble from necessity conduct or relationship and is an essential ele- However, it is creation. submitted that ment of that there are also other elements vital marriage relationship. relationship Such a majority opin-

This writer feels that the provides orderly the benchmark of an socie- ion, courts, along with other has failed to ty. relationship provides Such a the basis proper approach disposition take the homestyle for a conducive of a wholesome questions presented by such a case as environment for all the members of that present outset, very case. At the our relationship society collectively. and to It courts forgot- have either elected or have provides stability the basis for social so a ten that the spe- contract is of a society collectively can nature; achieve an ever-ex- not, cial and more frequently than panding provides lifestyle. wholesome It dispose our courts choose to disputes whereby progeny basis may thereof arising along from marital princi- contracts feel secure and thus contribute even more ples applicable to other forms of contract. good society to the overall than their The marital aptly contract has been defined ancestors. . follows: Marriage is a contract under which a sure, ideal, To be the above is the man a woman reciprocally engage regrettably goals too often the intended during to live with each joint their relationship the marital are not achieved. discharge lives and to toward each other But it is submitted that such failures do imposed duties law on the relation adoption not warrant or even allow for the of husband and wife.” 55 Mar- C.J.S. any legal principle rule or which runs riage added) (emphasis 1§ contrary support to or fails to such an The nature of the contract has ideal. thusly:

been defined Hence, been, if it has Marriage generally considered a civil state, opinion becomes the law of our it will differing respects in notable contract continue to be a mistake to have resolved contracts, ordinary but it is also questions presented by appel- as are specially personal a status or rela- herein, simply upon lant’s lesbian behavior tion in which the state is deeply con- a conclusion that such has not behavior cerned and over which the state exercis- impacted upon relationship the sexual be- es exclusive dominion. 55 C.J.S. Mar- parties. if way, tween the Stated another 1(b) at 806 § relationship the sexual between the writer, courts, opinion criteria, In the this is to be the then form of years, over the glaring party, have made two conduct either no matter how attempt disregard- errors in the repugnant repulsive, to resolve the numer- is to be long relationship so acceptance protection ed as the sexual be- or no and dis- when parties reasoning the Such tween exists. is covered or disclosed to relative the marital expression ignorance, not of but it relationship, such can and should behavior to voiding chooses discount all other vital elements a basis be definite for the marital Thus, relationship. contract, relationship marital under or or serve as basis might reasoning, such the have en- relationship for avoidance of the marital or joyed relationship, a harmonious sexual but contract. opposition rejection regards or of as appears long It that the courts have been present other’s the behavior could which up questions, reluctant to face to such and disruptive relationship, the is of marital or might today’s it even be said of courts that might the prevented at outset have the point they are intimidated to the will relationship, establishment the marital questions. face such This intimidation yet opposition rejection and such or could in part noisy rests from the clamor declaring

never serve as a basis for the definitely and minority distinct small claim- marital contract void or voidable. ing against recognition, that a decision the

Further, courts, acceptance protection it has been for our error and of homosexuality indeed majority opinion as ways, herein has in various those denies desirous of erred, to disputes challeng- marital engaging homosexuality resolve in right do ing validity of the marital contract so. Such a decision does upon principles the rules and merely fraud. kind. It society states that refuses Thus, our engaged, recognize “reprehensible courts and contin- conduct” engage, approach ue to in an to such mat- and the will protection law afford no or ters which them avoid any rights allows determina- enforcement where such question, “reprehensible tion the basic which is: Shall conduct” is in any manner any and types all forms or of human behav- involved. acceptable society, ior be in our and is it to state, right society, that is has recognized protected by legal and our such position, particularly take where or, system? recognizable Are there limits involved, relationship or marital contract is beyond

to human society behavior which irresponsible and it is for accept protect? will neither nor facing question, to, avoid the obvious question turn, If the applied above in legal some fiction to present proceedings, thusly: it would read derive such a conclusion. Is homosexual acceptable behavior an be- This dissent has not even bothered society, havior our should rec- it be drug question address the addiction de- ognized protected by legal system? our tail, because this writer deems affirmance or, (to Is homosexual behavior use the appellant’s sufficient the issue of majority opinion) “reprehen- words However, lesbian behavior. this dissent not in sible conduct accordance with the agree appellant’s drug cannot addic- beyond society” normal more of soci- which tion, evidence, ample to which there was ety accept protect? will neither nor That is would not suffice as a for basis annulment. question which the case herein Furthermore, appellant’s drug the effect of presents, one which this court regarding respondent’s addiction license engaging should answer lieu of respon- practice, might or that affect fiction of been fraud deceit has reputation, dent’s is not issue herein. approach by previously, courts addiction, drug regards Appellant’s as adopted by turn the majority herein. annulment, grounds for relative question by answer to this writer how it affected the marital that, quite simply, quite homosexual behavior The record is clear that beyond recognized adamantly opposed illegal

is such behavior and was use of acceptable drugs society by anyone, including appellant. limits to which owes Thus, acceptance protection. Thus, no appellant’s drug it fol- use was another granting lows homosexual behavior find annulment. should basis Columbia, Harper, Milt Russell court should judgment of the circuit McGee. upon the basis be affirmed illegal addiction to and her

lesbian behavior Atty., III, Antel Asst. Pros. Jerome S. disruptive of and even destruc- drugs were Columbia, respondents. County, Boone elements of the of essential tive warranting an annulment relationship, MANFORD, P.J., and Before relationship contract. the marital GAITAN, JJ. NUGENT

MANFORD, Presiding Judge. from the orders Appellants appeal granting County of Boone Circuit Court respon- favor summary judgment originated sep- appeal three dents. This in each the facts Sachs, arate actions but because McGEE, Lynn David Glen Allen similar, requires the and each case Russell, case are Jr., Terry Appellants, statute, of the same interpretation appeal by order consolidated on cases were OF the DEPARTMENT OF REVENUE disposed of as and are herein of this court MISSOURI, and Director STATE OF one. Department of Revenue of the State follows: pertinent facts are as Jr., McNeill, Re- of Missouri-Paul S. Sachs, McGee, and Russell spondents. Appellants under the laws each were convicted twice No. 39459. WD driving while of the state of Missouri Appeals, Missouri Court of on June McGee was convicted intoxicated. Western District. 1,1986. 6,1977, December Sachs 31,1972, January July convicted on

Oct. 1987. January convicted on 1987. Russell was A of nine January 1987. total 1973 and convictions, four- years separates McGee’s conviction, separates Sachs’ years teen separates Russell’s convic- years fourteen tions. conviction, each

Following their second of Loss of Driv- appellant received a Notice informing respondents, ing Privilege from operate privilege legally that their them had been denied vehicle Missouri a motor having been five due to each driving while intoxicat- convicted for twice ed. notice, receiving each

Upon respon- filed a for review lant Court decision Circuit dents’ Appellants Sachs County, Missouri. Boone motion for summa- and Russell each filed a ry judgment. entered a May the court

On summary judgment entry of notice of ap- Orr, against each Woods, Bley respondents Sapp, favor Wally Bley of timely filed his Columbia, pellant. Each Eng, for Sachs.

Case Details

Case Name: Woy v. Woy

Court Name: Missouri Court of Appeals

Date Published: Oct 6, 1987

Citation: 737 S.W.2d 769

Docket Number: WD 38277

Court Abbreviation: Mo. Ct. App.