Opinion
No. WD 52726
Opinion filed: January 20, 1998
APPEAL FROM THE CIRCUIT COURT OF BOONE COUNTY, THE HONORABLE RONALD M. BELT, JUDGE.
William D. Rotts, Columbia, Cathleen Ann Conneally, Kansas City, for appellant.
Roger P. Krumm, Fulton, Chris Nelson, Hallsville, for respondent.
Before Ulrich, C.J., P.J., Lowenstein, J., and Smith, J.
Janice Ann DeLong (Mother) appeals from the judgment of dissolution entered by the trial court dissolving her marriage to Fredrick Joseph DeLong III (Father), awarding custody and visitation of the parties' three minor children, and distributing property. She claims the trial court erred in (1) awarding sole custody of the parties' children to Father, (2) restricting her visitation with the children and ordering her to inform them that "she is homosexual," and (3) enforcing the antenuptial agreement. She contends that the trial court's custody decision was improperly based solely on her "sexual orientation." She also argues that the antenuptial agreement was not entered into with full disclosure and was unconscionable.
Although both parties and Amicus refer to "sexual orientation" and describe Mother as "lesbian" and "homosexual," this court avoids such labels, aware that such labels have been applied in prior opinions in this state and others and that various individuals and groups, in furtherance of their causes, apply such labels not only to people who engage in sexual conduct with a person or persons of their own gender but also to other persons because of their perceived attitude about sexual relations absent actual sexual conduct. Instead, the court considers the evidence of record regarding the conduct of the parties in this case, including Mother's. Whether a person is "homosexual" or a "lesbian," or whether one's "sexual orientation" is or can be determined absent sexual activity with a member or members of the same gender need not be determined here, and such effort is beyond the scope of this case.
The judgment of the trial court is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion.
FACTS
Mother and Father were married in June 1985. At the time of the wedding, Mother was 24 years old and beginning her career as a school teacher with an annual income of $13,000. Father was 36 years old and a full-time attorney with his own practice and an average annual income of $80,000. Father was the primary custodian of a son, Joseph DeLong IV, born of a previous marriage.
As a condition of the marriage, Father asked Mother to submit to a psychological evaluation by his psychologist. The stated purpose of the evaluation was to test the parties' compatibility for marriage. During a meeting with the psychologist, Mother revealed that she was sexually attracted to both men and women and that she had engaged in sexual activity with women in the past. Despite these revelations, and based on Mother's expressed commitment to a monogamous relationship, Father was satisfied with Mother's psychological profile.
Father also asked Mother to sign an antenuptial agreement drafted by his attorney as a condition to the marriage. Mother was represented by two different attorneys throughout the negotiations. Her first attorney refused to approve of the agreement due to terms he considered onerous and resigned as counsel for Mother presumably because Mother, against his advise, would not reject the terms. Father's psychologist then referred Mother to another attorney who eventually acquiesced to his client's wishes. The agreement provided, inter alia, the following in the event of divorce: (1) each party would waive any right to maintenance beyond the agreement itself, (2) Father would pay Mother $2,000 for each year of their marriage up to a maximum of $50,000, and (3) the parties would retain their own separate property consisting of property owned prior to the marriage and property acquired during the marriage including earnings from employment. The agreement also provided that Mother would receive $10,000 upon execution of the agreement, that Father would pay Mother's attorney's fees, and that Father would contribute $2,000 to an IRA in Mother's name each year of their marriage on the anniversary date of their union. Mother and Father disclosed assets of $5,000 and $529,607, respectively. Six months prior to the wedding, the parties signed the antenuptial agreement.
At trial, Mother testified that Father promised the agreement would be discarded upon the birth of their first child. Father denied making this statement.
Three minor children were born of the union: Morgan, born May 25, 1986, Kelsey, born February 23, 1988, and Chase, born April 6, 1990. Mother primarily stayed at home to care for Joseph, who is Father's son, and the three younger children. Father eventually became the principal shareholder and CEO of DeLong's, Inc., the family's bridge-steel fabrication business.
In March 1994, Mother filed a petition for dissolution of marriage in Boone County requesting that her marriage to Father be dissolved, that joint legal custody of the minor children be awarded to her and Father, and that she be designated the primary physical custodian of the children. She also requested an award of maintenance and division of the marital property in just proportions.
Father filed an answer to the petition and his cross-petition for dissolution of marriage. He requested the court to dissolve his marriage to Mother, divide the marital property heeding Mother's extramarital affairs and the antenuptial agreement entered in December 1984, and award sole custody of the children to him with restricted visitation to Mother. He alleged that Mother had "entered significant, intense, open and blatant lesbian relationships since the parties' children were born" and that "the best interest and welfare of the children will be served by their care, custody and control being granted to [Father]."
At trial, the parties introduced evidence regarding their parental skills and their relationship with the children. Both parties presented custody evaluation reports prepared by psychologists and psychiatrists recommending custody awards.
Evidence was also presented that Mother engaged in homosexual conduct and involved herself in extramarital affairs with women during the marriage. She admitted to two sexual relationships and another brief nonsexual relationship with women beginning in 1991 after concluding that her marriage was irreparable. She also testified to having engaged in sexual conduct with another woman after she and Father separated. Mother testified that all of her sexual encounters were discreet and that the children did not know of the nature of the relationships, although they knew the women as friends of their mother. Father testified that he also had an extramarital sexual relationship with a woman after separation.
The parties also presented evidence regarding property and maintenance issues utilizing stipulated documents. Both parties retained accountants to value assets and provide financial information to the court.
The trial court entered its decree of dissolution in April 1996 dissolving the DeLongs' marriage and awarding sole custody of the three minor children to Father. It found that joint custody would not be appropriate and that the children's best interests would be met if they were in their father's custody. In making these findings, the court cited Mother's engagement "in a promiscuous series of four homosexual affairs," her repeated denial and concealment of "her adulterous lesbian activity," her intention to continue "exposing her lesbian lovers to her children," and her "immaturity in seeking after repeated new love relationships." The trial court also restricted Mother's visitation with the children by ordering her to "keep any and all aspects of the homosexual lifestyle away from the minor children during the children's periods of visitation with her." The court ordered that during visitation, none of the following people shall be in the children's presence:
a. Any person known by [Mother] to be lesbian or known by [Mother] to be one who engages in lesbian sexual activity except Diane Light, a long time friend of the children.
b. Any other female, unrelated by blood or marriage, with whom [Mother] may be living.
The trial court further directed the guardian ad litem to monitor a "telling" session wherein Mother was to tell the two older children that "she is homosexual."
Regarding the property and maintenance issues, the court found that the premarital agreement was conscionable and was entered into by the parties freely, fairly, knowingly, understandingly and with full disclosure. The agreement was enforced, and Father was awarded $3,551,650 in separate and marital property and Mother was awarded $434,454 in property. Maintenance was denied for both parties, and Father was ordered to pay Mother $22,000, or $2,000 for each year of their eleven-year marriage. This appeal followed.
CHILD CUSTODY AND VISITATION
On appeal, Mother claims that the trial court erred in awarding sole custody of the three minor children to Father, conditioning and restricting her visitation rights, and ordering her to inform the older children "she is homosexual." Mother claims that the evidence proved she was the better custodian in accordance with the best interests of the children and the statutory factors set forth in section 452.375.2. She argues that the court's rulings regarding custody and visitation were not based on the best interests of the children but solely on the fact that "she is homosexual." Mother alleges that instead of a focus on the best interests of the children, "the courtroom became a battleground in which sexual orientation was the principal issue" and that Father and the guardian ad litem became obsessed with dissecting her sexual life, "uncovering every detail of any kiss, touch or other intimate contact she may have engaged in with a member of the same sex."
All statutory references are to RSMo 1994 unless otherwise indicated.
Parents have a fundamental liberty interest in the care, custody and management of their child. Santosky v. Kramer , 455 U.S. 745, 753 (1982); Meyer v. Nebraska , 262 U.S. 390, 399 (1923). The Supreme Court has long recognized this liberty interest "as essential to the orderly pursuit of happiness by free men." Meyer , 262 U.S. at 399. The Court has explained that the parents' "desire for and right to the companionship, care, custody and management of [their] child is an important interest that 'undeniably warrants deference and, absent a powerful countervailing interest, protection'." Lassiter v. Dept. of Soc. Serv. , 452 U.S. 18, 27 (1981)(quoting Stanley v. Illinois , 405 U.S. 645, 651 (1972)).
The liberty interest of parents in maintaining a relationship with their child is also appreciated by the states. The Utah Supreme Court has described the right as "transcend[ing] all property and economic rights [and as] rooted not in state or federal statutory or constitutional law, to which it is logically and chronologically prior, but in nature and human instinct." In re J.P. , 648 P.2d 1364, 1373 (Utah 1982). In Missouri, the parent/child relationship has been labeled "sacred." Jonathon H. v. Margaret H. , 771 S.W.2d 111, 114 (Mo.App. 1989).
As such, a state will not interfere with the relationship between parents and a child unless the child is in need of care or protection. A child, however, comes under the jurisdiction of the court upon the filing of an action for dissolution pursuant to section 452.305.3, and the court, exercising the authority of the state, protects the interests of the child. C.J.(S.)R. v. G.D.S. , 701 S.W.2d 165, 169 (Mo.App. 1985).
In Missouri, a court determines custody in a dissolution action in accordance with the best interests of the child. § 452.375.2. "[The best interests of the child] is not a factor which itself is placed on the legal balance scales but rather it is the single standard by which all relevant factors are to be measured." In re Marriage of Hayden , 588 S.W.2d 165, 167 (Mo.App. 1979).
In awarding custody, the trial court is presumed motivated by the best interests of the child. Hack v. Hack , 695 S.W.2d 498, 500 (Mo.App. 1985). Deference is given to the trial court's assessment of what serves the child's best interests, and, unless an appellate court is convinced that the child's welfare requires some other disposition, the trial court's custody decision will be affirmed. McDowell v. McDowell , 670 S.W.2d 518, 521 (Mo.App. 1984). Thus, the trial court's decision will be upheld on appeal 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. Murphy v. Carron , 536 S.W.2d 30, 32 (Mo. banc 1976); Guier v. Guier , 918 S.W.2d 940, 946 (Mo.App. 1996).
In determining the best interests of the child, the court shall consider all relevant factors including those prescribed in section 452.375.2:
(1) The wishes of the child's parents as to his custody;
(2) The wishes of the child as to his custody;
(3) The interaction and interrelationship of the child with his parents, his siblings, and any other person who may significantly affect the child's best interests;
(4) The child's adjustment to his home, school, and community;
(5) The mental and physical health of all individuals involved, including any history of abuse of any individuals involved . . .;
(6) The needs of the child for a continuing relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
(7) The intention of either parent to relocate his residence outside the state; and
(8) Which parent is more likely to allow the child frequent and meaningful contact with the other parent.
§ 452.375.2. The statutory factors are not exclusive and must be considered with all other relevant factors. V.M. v. L.M. , 526 S.W.2d 947, 949 (Mo.App. 1975).
Missouri courts generally deem a good environment and stable home the single most important, relevant consideration in custody matters. D.K.L. v. L.C.L. , 764 S.W.2d 664, 666-667 (Mo.App. 1988); M. v. M. , 688 S.W.2d 384, 386 (Mo.App. 1985). Thus, the character, conduct, behavior, morals, and mode of life of the parents are proper considerations for a trial court in awarding custody. Id.; Wilmesherr v. Wilmesherr , 708 S.W.2d 823, 824 (Mo.App. 1986); Hack , 695 S.W.2d at 500. "While no court can force a parent to observe any particular moral code, the moral fitness of a person seeking custody of a child is a proper subject for the court's consideration." Brotherton v. Lowe , 819 S.W.2d 74, 77 (Mo.App. 1991)(quoting M.L.G. v. J.E.G. , 671 S.W.2d 312, 315 (Mo.App. 1984)). In T.C.H. v. K.M.H. , 693 S.W.2d 802, 804-805 (Mo. banc 1985), the Missouri Supreme Court recognized the importance of the trial court's considering the sexual conduct or behavior of a parent for the protection of the children and for the sake of public policy.
Missouri recognizes the marital relationship between a man and a woman, only. § 451.022 RSMo (1994). A reasonable inference of the public policy expressed in section 451.022 is that the General Assembly intends that the desired environment for propagating and rearing children is within the sanctioned relationship of marriage between both natural parents. Although the marital relationship between the natural parents is frequently not the environment in which a child is reared, the citizens of Missouri, through the General Assembly, have a legitimate interest in preserving heterosexual marriage as the primary family institution for propagation and rearing children.
A custody award should not be a reward or punishment of either parent; custody of a minor child is made in the best interests of the child. T.B.G. v. C.A.G. , 772 S.W.2d 653, 654-655 (Mo. banc 1989). The issue is not condemnation or approval of a parent's behavior or a moral standard but whether the conduct in question is detrimental to the child's welfare. Fastnacht v. Fastnacht , 616 S.W.2d 98, 100 (Mo.App. 1981). A parent's behavior, therefore, must affect the child's welfare before it is relevant in a custody dispute. Shoemaker v. Shoemaker , 812 S.W.2d 250, 255 (Mo.App. 1991). Adultery, promiscuity, or sexual misconduct, while generally condemned by courts, is insufficient, standing alone, to deem a parent an unfit custodian of the parent's child if unaccompanied by evidence that the conduct adversely affected the child. Fastnacht , 616 S.W.2d at 100 . In accordance with the best interests of the child standard, "the trial court must decide the factual issue of the 'effect of the misconduct on the child which is an inference to be drawn from the whole record in most instances.'" T.C.H. , 693 S.W.2d at 804 (quoting Robertson v. Robertson , 630 S.W.2d 266, 267 (Mo.App. 1982)). A parent's sexual or moral conduct warrants consideration in a custody proceeding, therefore, only where it affects directly the mental, physical, economic or social well-being of the child. Humphrey v. Humphrey , 888 S.W.2d 342, 346 (Mo.App.E.D. 1994).
Considerations in a custody dispute of a parent's moral or sexual activities are not limited to conduct that has detrimentally affected the child. M. v. M. , 688 S.W.2d at 386 . Evidence that a parent's conduct may be expected to have an adverse effect on the child is also considered. Fastnacht , 616 S.W.2d at 100 . Likewise, evidence that a parent's inappropriate conduct may inspire by example or foster by condonation must be considered. D.K.L. , 764 S.W.2d at 667 .
Despite the best interests of the child standard, which requires a fact-based assessment of all factors relevant to the child's welfare, Missouri courts appear to apply a " per se rule" in awarding custody where one parent is homosexual. The per se rule establishes an irrefutable presumption that a parent who engages in homosexual behavior is unfit to be custodian of his or her child. See Juliet A. Cox, Comment, Judicial Enforcement of Moral Imperatives: Is the Best Interest of the Child Being Sacrificed to Maintain Societal Homogeneity? , 59 Mo.L.Rev. 775, 792 (1994). Without assessing the fitness of the parent who engages in homosexual conduct, the possible unfitness of the parent who does not engage in homosexual conduct, the relationship between each parent and the child, the effect of homosexual conduct on the child, or any other factor relevant to the child's welfare, Missouri courts presume that "placing primary custody of a minor child with the nonhomosexual parent is in the best interests of the child." S.L.H. v. D.B.H. , 745 S.W.2d 848, 849 (Mo.App.E.D. 1988).
Since 1980, Missouri appellate courts have decided seven cases involving homosexual conduct and child custody and visitation. See T.C.H. v. K.M.H. , 784 S.W.2d 281 (Mo.App. E.D. 1989); J.P. v. P.W. , 772 S.W.2d 786 (Mo.App.S.D. 1989); G.A. v. D.A. , 745 S.W.2d 726 (Mo.App.W.D. 1987); S.E.G. v. R.A.G. , 735 S.W.2d 164 (Mo.App.E.D. 1987); J.L.P.(H.) V. D.J.P. , 643 S.W.2d 865 (Mo.App. W.D. 1982); L. v. D. , 630 S.W.2d 240 (Mo.App.S.D. 1982); N.K.M. v. L.E.M. , 606 S.W.2d 179 (Mo.App.W.D. 1980). In all cases, the trial court's award of custody to the heterosexual parent and restrictions on the homosexual parent's visitation rights have been upheld. Id. The "judicial policy in this state [seems] to conclusively presume the detrimental impact on a child from the parent's homosexuality." G.A. v. D.A. , 745 S.W.2d 726, 728 (Mo.App.W.D. 1987)(Lowenstein, J., dissenting). With little or no consideration of any other factors relevant to a child's best interests, including the fitness of the heterosexual parent to be custodian, Missouri courts seem to have consistently relied on a presumed detrimental impact of homosexuality on a child to sustain custody awards to the nonhomosexual parent.
Beginning in 1980 with the case, N.K.M. v. L.E.M. , 606 S.W.2d 179 (Mo.App.W.D. 1980), the Western District upheld a trial court's change of custody from the mother to the father based on the mother's homosexual relationship with another woman and the woman's harmful influence on the child. The mother presented psychiatric evidence that the child was "normal and well adjusted" and showed "no ill effects from her present environment" with her mother. Id. at 186. The court, however, dismissed this evidence as a credibility question for the trier of fact and presumed a future detrimental impact on the child from exposure to the mother's paramour, asserting that the child "may thereby be condemned, in one degree or another, to sexual disorientation, to social ostracism, contempt and unhappiness." Id. It further added that it "does not need to wait till the damage is done." Id. The father's fitness or unfitness to be the custodian of the child was not mentioned by the court. Although the court recited the best interests of the child standard as "the over-arching principle by which courts are to be guided in child custody cases," the court effectively denied the mother custody solely on the basis of an absolute presumption of detriment resulting from contact with the mother's paramour. Id.
Two years later, in L. v. D. , 630 S.W.2d 240 (Mo.App.S.D. 1982), the Southern District sustained the denial of a mother's request for change of custody and restrictions placed on her visitation with her children because she had engaged in, and at the time of the hearing, was engaged in a homosexual affair. The mother asked the court to reject the irrefutable presumption that a homosexual parent is an unfit parent and presented evidence from social psychologists, clinical psychologists, and various journals and articles suggesting that the children would not be adversely affected by living with her and her lover. Id. at 243. The court upheld the trial court's finding that the mother's evidence was not credible and stated that the mother's personal conduct "could well have an effect on children" during their formative years and that "we cannot ignore the influence her conduct may well have upon the future of [the children]." Id. at 243-244. Citing N.K.M. , the court effectively presumed future detriment to the children from the mother's homosexual conduct and denied mother custody with only a cursory statement regarding the suitability of the father's home. Id. at 244-245.
In J.L.P. v. D.J.P. , 643 S.W.2d 865 (Mo.App. W.D. 1982), this court affirmed the trial court's order specifying scheduled visitation rights of a father who admitted numerous homosexual relationships following dissolution of his marriage, denying his overnight visitation privileges, and limiting his visitation rights by prohibiting him from taking the child to gay activist social gatherings. The father introduced the testimony of two psychologists that the child did not suffer any psychological damage from his association with his father at that time. Id. at 866. The mother did not offer expert opinions regarding any adverse effect the father's homosexuality had or may have on the child. On appeal, the father argued that the record did not support the factual findings of the trial court. Id.
This court found that the trial court was not required to accept the uncontradicted opinions of the father's experts. Id. at 868. Instead, it sustained the trial court's factual inferences, drawn from the father's testimony advocating a homosexual lifestyle and from the mother's testimony regarding her beliefs that the child was adversely affected by visitation with his father, that the potential for physical and emotional harm existed if the restrictions on the father's visitation were not imposed. Id. at 869. The court presumed, "the father's acknowledgment that he was living with an avowed homosexual certainly augurs for potential harm to the child that the trial court was perfectly competent to assess." Id.
Five years later, in S.E.G. v. R.A.G. , 735 S.W.2d 164 (Mo.App.E.D. 1987), a mother appealed from the trial court's order awarding primary custody of the parties' four minor children to the father and restricting her visitation with the children. Custody was originally granted to the mother; however, the order was amended to award custody to the father when new evidence was uncovered that the mother was involved in a homosexual relationship with a woman who resided in St. Louis and drove to the mother's home several times a week. Id. at 165. The two women were open about their relationship with each other to mother's children and to the community.
In affirming the change of custody, the Eastern District presumed that the moral growth and best interests of the children would be better protected in the custody of their father. Id. at 166. The court did not refer to specific evidence of the harm the mother's homosexuality had or may have on the children. Id. Instead, the court explained, "Union, Missouri is a small, conservative community with a population of about 5,500. Homosexuality is not openly accepted or widespread. We wish to protect the children from peer pressure, teasing, and possible ostracizing they may encounter as a result of the 'alternative life style' their mother has chosen." Id. The fitness of the father to be the children's custodian was discussed by the court only to the extent that the mother claimed error in the trial court's findings of fact. Id. Although the Eastern District espoused the best interests of the child standard in upholding the trial court's custody award, it primarily focused on the mother's homosexual relationship with her lover. The court presumed detrimental impact on the children. Id.
Relying on S.E.G. , the Western District decided G.A. v. D.A. , 745 S.W.2d 726 (Mo.App.W.D. 1987), the same year. In G.A. , the trial court granted custody of the parties' minor son to the father stating that the mother's acknowledged homosexuality tipped the scales in favor of the father. Id. at 727. This court affirmed the trial court's order speculating, without evidentiary support, that "the environment into which [the child] would be thrust by granting custody to [the mother] would not be a healthy one." Id. at 728.
In a dissenting opinion, Judge Lowenstein criticized the majority's apparent application of the per se rule asserting that the decision on the welfare of the child based solely on the mother's sexual preference was made on less than complete information and was, therefore, suspect. Id. at 729 (Lowenstein, J., dissenting). He stated, "If there has been any doubt as to the issue of homosexuality being an absolute or conclusive presumption of detriment, the result in this case on these facts dispels that doubt." Id. at 728. Judge Lowenstein then recited the following facts of the case and concluded:
The mother provides the child with his own room in a well kept house, enrolls him in a pre-school, has a steady nursing job, cares about the child, and, despite sleeping with and occasionally hugging a woman, has stated under oath she would discourage her son from emulating her sexual preference. The father has limited education, an income of $6500 and lives in basically a one room cabin containing a toilet surrounded by a curtain; the child sleeps in a foldup cot by a woodstove and plays in an area littered with Busch beer cans, collected by the father's "slow" sister, who was ordered by the trial court not to care for the boy while alone. The 75 year old paternal grandmother helps care for the little boy.
To say it is in the best interests of this little boy to put him in the sole custody of the father, who was pictured leering at a girly magazine, solely on the basis of the mother's sexual preference, would be and is a mistake.
Id. at 729. In child custody cases where one parent engages in homosexual conduct, Judge Lowenstein encouraged courts to use complete information instead of presuming that the homosexual conduct of a parent is conclusively detrimental to the child, effectively eliminating any additional evidence about the best environment available for the child. Id. at 730.
In 1989, the Southern District decided J.P. v. P.W. , 772 S.W.2d 786 (Mo.App.S.D. 1989). In J.P. , the mother sought to modify the child custody decree by restricting the father's visitation with the parties' minor daughter. Id. The father was engaged in a homosexual relationship, residing with his lover. Following a hearing on the motion, the trial court restricted the father's visitation by ordering that "neither the [father's] present lover nor any other male with whom the [father] may be residing shall be in the child's presence or in the [father's] home during such visits." Id. at 786-787. The mother and father both appealed.
The Southern District found that modification of the custody decree was warranted but that the modification made by the trial court did not sufficiently restrict the father's visitation. Id. at 793-794. It found that "unrestrictive visitation by the father would endanger the child's mental health and emotional development" and that visitation by the father "must be supervised visitation in the presence of a responsible adult." Id. at 794. In making these findings, the court presumed that "the child's physical or emotional welfare is threatened by the activities and conduct of the father." Id. at 793 (quoting J.L.P.(H.) v. D.J.P. , 643 S.W.2d 865, 869 (Mo.App. 1982)). It recognized that other states hold that homosexual behavior of a parent is a basis for restricting or denying visitation only when it has adversely affected or is likely to affect the child in question. Id. at 792. Nevertheless, it noted that Missouri law presumes a detrimental impact to a child from a parent's homosexual conduct and that expert testimony is not a necessary basis for a determination that exposure to a homosexual influence will adversely affect a child. Id. at 792-793 (citing N.K.M. v. L.E.M. , 606 S.W.2d 179, 186 (Mo.App. 1980) and J.L.P.(H.) v. D.J.P. , 643 S.W.2d 865, 869 (Mo.App. 1982)).
In a dissenting opinion, Judge Prewitt disagreed with the majority's application of the per se rule stating, "As I read the majority opinion, no homosexual parent should ever have unsupervised custody of his child even for a relatively short period. This is the type of generalization that courts should not make, although that appears to occur in this type of custody matter." Id. at 795 (Prewitt, J., dissenting). Asserting that the father's visitation should not be restricted to supervised sessions, Judge Prewitt observed that no evidence was presented indicating physical or emotional harm to the child presently or in the future. Id. The dissent concluded that "[e]ach custody case, whether a parent is homosexual, is different and should be determined on its own facts." Id.
The latest case to be decided in Missouri involving homosexuality and child custody was T.C.H. v. K.M.H. , 784 S.W.2d 281 (Mo.App.E.D. 1989). In T.C.H. , the mother appealed the trial court's award of primary custody of the parties' two minor children to the father claiming that it was not based on substantial evidence. Id. at 283. The trial court found "that the [mother's homosexual] relationship is having an ill-effect on the morality of the children and will continue to effect [sic] their well-being in the future." Id. at 284.
In upholding the trial court's award, the Eastern District first appeared to apply a "nexus" test that allows consideration of a parent's homosexual conduct as just one factor in the overall determination of custody if evidence is presented that the parent's sexual activity is or may be harmful to the child. The court outlined evidence presented by the father, including the testimony of experts, demonstrating the negative impact on the children of mother's custody. Id. at 285. The court described specific activities in which the mother engaged in the presence of or with the knowledge of the children and recounted specific occurrences involving the nine-year-old son and his familiarity with homosexual sex. Id. In addition, the court extensively examined the father's fitness to be custodian. Id.
The court, however, then seemed to apply the per se rule in discussing the potential for future harm facing the children if placed in the mother's custody. It recognized, as authoritative, Missouri case law that stated a parent's homosexual conduct "can never be kept private enough to be a neutral factor in the development of a child's values and character." Id. (quoting G.A. v. D.A. , 745 S.W.2d 726, 728 (Mo.App. 1987)). Without specifying evidence presented at trial, the court stated that it could not ignore the effect the mother's sexual conduct may have on the children's moral development. Id.
In all previous Missouri cases, a trial court's award of custody to the nonhomosexual parent or restriction on the homosexual parent's visitation was upheld on appeal ostensibly based on supposition that the parent's homosexual conduct might have a negative impact on the child. In each case, the appellate court presumed that being raised by a homosexual parent was not in the child's best interest despite a lack of substantial evidence to support the conclusion and frequently without substantial evidence of the environment presented for the child by the heterosexual parent.
To the extent that Missouri case law automatically presumes that a homosexual parent is per se unfit to be custodian of his or her child, it is not followed in this case. Such an irrefutable presumption, where a parent's homosexual conduct is, alone, determinative, is inherently inconsistent with the best interests of the child standard, which requires consideration of all factors relevant to the child's welfare. In fact, focusing a custody determination on a parent's homosexual conduct, alone, may permit a decision contrary to the best interests of the child in a case where the characteristics of the heterosexual parent are undesirable or possibly harmful. A per se approach necessarily ignores the heterosexual parent's fitness to be custodian, and the application of this approach could conceivably result in an award of custody to the heterosexual parent without any evidence regarding his or her inappropriate heterosexual conduct or parenting skills.
Accordingly, a nexus approach is adopted in custody cases involving the issue of a parent's sexual conduct. Under this approach, a connection, or nexus, between a parent's sexual conduct, homosexual or heterosexual, and harm to the child must be established before the parent's sexual conduct is considered relevant to the custody determination. The relevant issue under this approach is not the nature of the parent's sexual activity but whether that activity adversely affects the child. Application of a nexus approach in these cases is consistent with the best interests of the child standard and the general principle that a parent's sexual or moral behavior is relevant in a custody case only if it adversely affects the child's welfare. As required by the best interests of the child standard, a nexus approach mandates an individualized, fact-based assessment of all factors relevant to a child's welfare, including a parent's homosexual conduct if it is shown to impact the child.
As with any other sexual or moral conduct of a parent, if a parent's homosexual conduct is shown to detrimentally affect the mental, physical, economic or social well-being of a child, it is a proper consideration for the court in a custody proceeding. Whether or how a homosexual parent's behavior or activities affect a child is a factual issue to be considered and resolved on specific evidence presented at trial. A.C. v. C.B. , 113 N.M. 581, 829 P.2d 660, 664-665 (N.M.App. 1992).
Generalizations regarding the possible impact a parent's sexual conduct outside the presence of a child may have on a child are impermissible. S.N.E. v. R.L.B. , 699 P.2d 875, 879 (Alaska 1985). Likewise, the disapproval of morals or other personal characteristics, without evidence of how the morals or characteristics adversely impact the child, should not be used to determine the fitness of a parent to care for a child. State ex rel. Human Services Dept. , 107 N.M. 769, 764 P.2d 1327, 1329-1330 (N.M.App. 1988). "The State may not deprive parents of custody of their children 'simply because their households fail to meet the ideals approved by the community . . . [or] simply because the parents embrace ideologies or pursue life-styles at odds with the average'." Bezio v. Patenaude , 381 Mass. 563, 410 N.E.2d 1207, 1216 (Mass. 1980)(quoting Custody of a Minor , 378 Mass. 712, 393 N.E.2d 379, 383 (Mass. 1979)). Pronouncement of a nexus approach is not a comment on whether homosexuality is condoned by this court or community. Rather, it is meant to reconcile custody determinations involving a homosexual parent with the best interests of the child standard. Thus, to the extent that the homosexual behavior of a parent can be shown by evidence presented at trial to adversely impact a child, it is relevant in a custody proceeding and should be considered as one of all relevant factors.
In the present case, the trial court focused primarily on Mother's homosexual conduct in awarding custody of the children to Father. While evidence was presented regarding the nature of Mother's sexual conduct, no evidence was introduced regarding whether or how it affects the children. The children were unaware of Mother's sexual preference, and Mother never engaged in any sexual or affectionate behavior in the presence of the children. The trial court's order did not include findings that Mother's homosexual conduct harmed or may harm the children. Citing J.P. v. P.W. , 772 S.W.2d 786 (Mo.App. 1989), the trial court concluded that Mother's restricted visitation was "designed to keep the negative influence of homosexuality away from the children." No evidence was presented to support the negative influence of Mother's homosexual conduct.
Although the trial court cited the best interests of the child standard and discussed Father's fitness to be custodian, the court's reliance on Mother's homosexual conduct, absent evidence of the impact such conduct had or may have on the children, was controlling. The order is devoid of discussion of the detrimental effects Mother's homosexual conduct is causing the children now or that can reasonably be anticipated in the future. The trial court, therefore, misapplied the law in awarding custody and restricting visitation based on Mother's homosexual conduct absent evidence of its impact on the children. Accordingly, the custody and visitation award is reversed, and the case is remanded to the trial court for the reception of additional evidence, if any, regarding the effect Mother's homosexual conduct has or may have on the children and for consideration of all factors relevant to the children's welfare.
ANTENUPTIAL AGREEMENT
As her next point on appeal, Mother claims that the trial court erred in enforcing the antenuptial agreement entered into prior to the marriage. She contends that the agreement was entered into without full disclosure and was unconscionable.
Missouri permits antenuptial agreements contemplating separation or divorce. Gould v. Rafaeli , 822 S.W.2d 494, 496 (Mo.App.E.D. 1991); Ferry v. Ferry , 586 S.W.2d 782, 786 (Mo.App.W.D. 1979)(antenuptial agreements are analogous to statutorily authorized separation agreements, section 452.325). An antenuptial agreement may validly govern maintenance and the disposition of property, regardless of the property's characterization as marital or nonmarital. See Sprock v. Sprock , 882 S.W.2d 183, 186-187 (Mo.App.W.D. 1994); Nedblake v. Nedblake , 682 S.W.2d 852 (Mo.App.W.D. 1984) (where the trial court was found to have erred in failing to divide equally the property acquired by a couple during the marriage according to their antenuptial agreement.) Section 452.330.1 directs that in a proceeding for dissolution of marriage or legal separation, the court "shall divide the marital property in such portion as the court deems just after considering all relevant factors." Section 452.330.2 creates a presumption that "all property acquired by either spouse subsequent to the marriage" is "marital property" subject to disposition by the court. The presumption may be overcome, however, by exceptions listed in section 452.330.2 including subsection (4), property excluded by valid written agreement of the parties. Sprock , 882 S.W.2d at 187 . Thus, the parties to a dissolution of marriage proceeding may, by written agreement, exclude property otherwise divisible and distributable to the parties by the court as marital property. Mother and Father, therefore, were permitted by written antenuptial agreement to define property to be excluded from division by the court should the marriage terminate by dissolution.
Freedom of contract in property settlement between spouses or prospective spouses, however, is not unfettered. To be enforceable, an antenuptial agreement must satisfy two requirements. Gould , 822 S.W.2d at 496; Ferry , 586 S.W.2d at 786 . The agreement must be entered into freely, fairly, knowingly, understandingly, and in good faith with full disclosure, and it must be conscionable. Id.
The first requirement concerns fairness of execution. Some factors considered in evaluating the fairness of the circumstances surrounding the execution of an antenuptial agreement include the complaining spouse's access to independent counsel, the amount of time between presentation of the agreement and the wedding to discuss and revise the agreement, the relative bargaining positions of each spouse in terms of age, sophistication, education, employment, and experience, and whether the spouses' assets and their values were fully disclosed. See McMullin v. McMullin , 926 S.W.2d 108, 111 (Mo.App.E.D. 1996); In re Estate of Reinsmidt , 897 S.W.2d 73, 77 (Mo.App. 1995); Gould , 822 S.W.2d at 496-497; Ferry , 586 S.W.2d at 787. See also John Tingley, J.D. and Nicholas B. Svalina, LL.M., Marital Property Law § 25:09 (rev. 2d ed. 1995).
Conscionability contemplates a fairness of substantive terms of the agreement. The conscionability requirement is the same standard employed in commercial law. Ferry , 586 S.W.2d at 786. It is a means to protect against one-sidedness, oppression, or unfair surprise. Id. "Unconscionability is defined as 'an inequality so strong, gross, and manifest that it must be impossible to state it to one with common sense without producing an exclamation at the inequality of it.'" Schlottach v. Schlottach , 873 S.W.2d 928, 932 (Mo.App. 1994)(quoting Peirick v. Peirick , 641 S.W.2d 195, 197 (Mo.App. 1982)). In determining whether an antenuptial agreement is conscionable, the terms of the agreement are considered in light of the circumstances existing at the time the agreement was made. In re Estate of Weinsaft , 647 S.W.2d 179, 182 (Mo.App. 1983).
Mother first complains that the antenuptial agreement was unenforceable because Father failed to fully disclose his assets. Specifically, she claims that Father greatly under stated the value of his assets, particularly his investments in DeLong's, Inc. and two other companies, by disclosing their book values rather than their fair market values. She claims that had Father disclosed the fair market value of his assets, his net worth would have been twice that actually disclosed and that she would not have signed the agreement.
"Full disclosure" requires each spouse to reveal the nature and extent of his property so that the other spouse may make a meaningful decision to waive all or part of those rights. McMullin , 926 S.W.2d at 111 . To make an informed decision, each spouse should be substantially advised of the other spouse's property or have knowledge of those facts. Id. "No satisfactory rule as to the sufficiency of disclosure or equivalent knowledge can be formulated in concrete terms for this is ordinarily dependent upon the circumstances of the case." In re Marriage of Lewis , 808 S.W.2d 919, 923 (Mo.App. 1991)(quoting Estate of Tegeler , 688 S.W.2d 794, 797 (Mo.App. 1985)).
In this case, Father disclosed assets including cash, accounts receivable, investments, and real estate with a net worth of $529,607. Most of the assets were valued at book value, and Mother was informed of this fact by the following notation on Father's disclosure statement:
Note: The values listed in this Statement of Assets are book values, except the household and personal property, which is listed at fair market value. The fair market value of the Metal Products, Inc., Metal Culverts, Inc., and DeLong's, Inc. stock and 203-205 Clay Street could be two to three times book value.
To the extent that Father's investments were publicly traded, their values would have been readily ascertainable. In re Estate of Reinsmidt , 897 S.W.2d at 78 . For the privately-held DeLong's Inc., Father provided the company's balance sheet. Regardless, Mother was substantially advised that the market value of Father's investments may be twice or three times their book value, and she cannot now complain that had she know this fact, she would not have signed the agreement. The execution of the agreement was, therefore, fair.
Mother also argues that the agreement was unconscionable. She asserts that the agreement was oppressive and extremely one-sided. She claims the agreement's provision that disposed of the parties' marital property effectively resulted in Father receiving all of the financial gain from the marriage since he was employed outside of the home while she received no credit for her contribution of staying home and caring for Joseph and the three younger children.
An important concern in measuring the conscionability of the terms of an antenuptial agreement is the attempted total exclusion of one spouse's presumed right to marital property. McMullin , 926 S.W.2d at 111; Ferry , 586 S.W.2d at 787. This concern is particularly significant where that spouse possessed, at the time of the agreement was made, little or no assets of their own. Id. Where, however, a spouse retains at least a share of the marital property in the agreement, courts have upheld the enforcement of the antenuptial agreement. See Darr v. Darr , 950 S.W.2d 867, 871 (Mo.App.E.D. 1997).
In Ferry v. Ferry , 586 S.W.2d 782 (Mo.App. W.D. 1979), appellant wife appealed the trial court's enforcement of an antenuptial agreement that precluded maintenance and any claim to property of more than nominal value. At the time the agreement was made, husband, a farmer, owned assets consisting of farm machinery, motor vehicles, livestock, crops, and cash. Wife owned some personal property of insignificant value. The antenuptial agreement provided for retention by the parties of their separate property during and subsequent to the marriage and for release of any future claim for support.
In holding that the antenuptial agreement was unenforceable, the court in Ferry first considered the unfairness in the execution of the agreement. Id. at 787. The agreement was prepared by husband's attorney; wife was not represented by counsel prior to signing, and the document was given to wife only a few days before the wedding providing limited time for discussion and revision; and some of husband's assets were not fully disclosed. Id. The court then considered the inequity of the terms of the agreement. It found that where wife had no assets worthy of mention, the agreement operated solely to insulate husband's property from division. Id. It explained,
The circumstances of the parties as to premarital assets and income generating potential were such that what purported to be a mutual release of claims was in fact a unilateral release by [wife] of future claims to support by [husband] and to share in assets otherwise distributable as marital property. Under these facts, about which there was no significant dispute, the antenuptial agreement was fundamentally unfair.
Although the court found that the agreement did not conclusively apply to marital property, it found that to the extent the agreement intended to exclude wife from any share of the marital property, the agreement was unconscionable.
Id. at 787.
Similar analysis was used in the recent case, McMullin v. McMullin , 926 S.W.2d 108 (Mo.App.E.D. 1996), to find an antenuptial agreement unconscionable. In McMullin , the trial court found the agreement one-sided and unconscionable because it attempted to bar wife from her rights to marital property. Id. at 111. The Eastern District agreed and affirmed the trial court's finding stating that "an attempt to have Wife waive her interest in all marital property was unenforceable." Id. (emphasis added).
Like Ferry and McMullin , this case illustrates the inequity invited by private agreement to deny claims of support and to shield unto one party the assets accumulated during the marriage otherwise distributable upon dissolution as marital property. At the time the agreement was entered into, Father was a 36-year-old full-time attorney earning $80,000 per year. Mother was a 24-year-old teacher earning $13,000 per year. Father owned assets with a book-value net worth of approximately $530,000 and a fair market value "that could be two or three times book value." Mother owned $5,000 in assets. The parties were contemplating marriage with the understanding that Father would continue to work and Mother would stay home to care for Joseph and the children they planned to have together. Considering the couple's premarital assets and the income-generating potential of each party, the provision in the antenuptial agreement providing that all property acquired and earned by each spouse during marriage remains that spouse's separate property was, in effect, a unilateral release by Mother of assets otherwise distributable as marital property. Father, therefore, would retain all but $5000 of the couple's combined premarital assets and potentially all income generated during the marriage as his separate property. Without an income of her own, Mother would not acquire any assets during the marriage, while Father's income was insulated from division by the agreement. Such disposition of marital property, in addition to a waiver of maintenance, would result in Mother having virtually no assets except those Father chose to give her and $2000 a year for each year the marriage survived, not to exceed $50,000.
The dissent's discussion of "circumstances arising since the time the agreement was made," including the transfer of assets to Mother in the later years of the marriage, is irrelevant in determining whether the antenuptial agreement was conscionable. Instead, the terms of the agreement must be considered in light of the circumstances existing at the time the agreement was made. In re Estate of Weinsaft , 647 S.W.2d at 182 . In light of those circumstances, the antenuptial agreement was unconscionable at the time it was entered into, and the trial court erred in enforcing it. The dissent argues that the agreement only limited what would be classified as marital property and that the trial court retained control over the distribution of marital property. The provision that attempted to define marital property, however, effectively excluded Mother, without justification, from virtually all assets that the marriage would acquire. The portion of the antenuptial agreement that addressed the issue of maintenance, in concert with the provision purporting to define and divide the property accumulated during the course of the marriage, effectively excluded Mother from receipt of virtually any financial benefits of the marital relationship. The only benefit to be realized by Mother from the marital relationship during which Mother was not to endeavor to produce income and was to remain at home to rear the children as the parties agreed was the sum of $2000 per year. The effect ultimately was that Mother would receive $22,000 for eleven years of marriage when Father's assets were measured in millions of dollars. The antenuptial agreement, when executed by the parties, effectively relegated much of Mother's marital role to that of au pair, whose duties included caring for the children born of the union in exchange for room and board and expense money and, should the marriage terminate by dissolution, an occurrence effected by Father whenever he wished, to a modest stipend of $2000 per year for each year of her effort, but no more than $50,000. The document effectively released Mother from any claim of support by Father and from sharing assets otherwise distributable as marital property.
Whether considering the conscionability of the antenuptial agreement as a whole or the separate provisions of the agreement in relationship to each other, the document was unconscionable when signed by the parties. The judgment of the trial court regarding property distribution is reversed, and the case is remanded for further proceedings regarding the identification of separate property and marital property, including any increase in separate property acquired with marital funds or contributions, and for the division of marital property as governed by section 452.330, and for such other purpose as the court shall determine consistent with law. Additionally, the trial court is directed to consider whether maintenance is appropriate and to receive additional evidence if it deems additional evidence is necessary.
The dissent claims that the majority ignored the severability clause in the antenuptial agreement in finding that the whole agreement was unconscionable. Its reliance on McGilley v. McGilley , 951 S.W.2d 632 (Mo.App. 1997), to save other provisions of the agreement is, however, misplaced. In McGilley , the trial court found an antenuptial agreement to be void due to its ambiguity, not its unconscionability. Id. at 637. The Western District found that the intent of the parties was clear and, therefore, the trial court erred in voiding the entire agreement. Id. at 638. In this case, the antenuptial agreement and, specifically, the provision defining and dividing marital property was unconscionable. Other provisions of the agreement, including the maintenance provision, were also unconscionable when read together.
The judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
Smith, J. concurs;
Lowenstein, J. concurs in part, dissents in part in separate opinion.
I respectfully dissent only as to the majority ruling that the antenuptial agreement was unfair as to maintenance and unenforceable and unfair as to division of marital property. The trial court found that the agreement of December 10, 1984, was clear, that it was made after a full and fair disclosure of assets, that the mother was not confused and understood she was waiving maintenance, and that she understood the provisions relating to the definition of marital property. The trial court concluded that the contract was enforceable since Janice had a draft of the agreement one year before the marriage, and, with the advice of counsel six months before the marriage, entered into the agreement after months of negotiations resulting in changes favorable to her.
This decision, which this court now reviews, is under the standard applicable to a court-tried case and must be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. McMullin v. McMullin, 926 S.W.2d 108, 110 (Mo.App. 1996). Application of the standard of review on this point dictates an affirmance for the following reasons.
(1) In its opinion, the majority relies upon Ferry v, Ferry , 586 S.W.2d 782 (Mo.Ct.App. 1979) and McMullin v. McMullin to support their conclusion that the antenuptial agreement was unconscionable when made. Their reliance is misplaced. As the majority points out, when determining whether an antenuptial agreement is conscionable, the terms of the agreement are considered in light of the circumstances existing at the time the agreement was made. Majority opinion at 23.
When considering the circumstances existing at the time the antenuptial agreement was made, Ferry is clearly distinguishable from the present case on its facts. In Ferry, (1) the appellant signed the antenuptial agreement two days before the wedding despite her objections to some of the terms which the Father represented would be changed; (2) the appellant was not represented by counsel and received no independent advice; (3) the agreement was entirely prepared by the respondent's attorney with no opportunity for appellant to give input; (4) some of the respondent's assets were not fully disclosed; and (5) the actual value of assets listed was not given. Ferry at 787.
In contrast, consider that in the present case (1) Wife signed the agreement more than six months prior to the wedding date under no time constraints or objections; (2) Wife was represented by independent counsel, receiving legal advice from two different attorneys, one of which advised Mother not to sign the agreement; (3) both Father and Wife's attorneys negotiated for more than five months regarding the terms of the agreement, and Wife's attorney negotiated at least five changes in the agreement from the original draft proposal that were all his suggestions; (4) the majority opinion states that Father's disclosure of his assets was full and fair; and (5) the book value of Father's assets was disclosed in writing and a notation indicated that the fair market value of Father's assets could be two to three times their book value. The facts that warranted a reversal in Ferry are simply not present in this case. Mother was represented by counsel, made changes to the agreement, signed the agreement well in advance of the wedding, and had full disclosure of Father's assets. In addition, unlike the wife in Ferry, Mother's final assets in the present case are not "of nominal value." Mother's brief indicated that the trial court's ruling left Mother with $345,823.00.
The majority also cites McMullin v. McMullin as evidence that the DeLong's antenuptial agreement is unconscionable, however, McMullin is distinguishable as well. In McMullin, the trial court found the antenuptial agreement to be unconscionable, rather than conscionable as the trial court did here. McMullin at 111. Thus, the appellate court affirmed McMullin under a different standard of review. Furthermore, the husband in McMullin conceded that the antenuptial agreement in that case was unenforceable and, as a result, the appellate court never had to make an independent analysis that the agreement was unconscionable. Id .
The present case is further unlike Ferry and McMullin because in the present case there was no attempt by Father to completely bar Mother from her rights to marital property. The antenuptial agreement only limited what would be classified as marital property, which is clearly allowed under RSMo. § 452.330.2(4). The agreement allowed the trial court to determine a just distribution of the marital property. In McMullin, the trial court pointed to the agreement's exclusion of wife's right to marital property as the reason for finding the agreement unconscionable. Id.
The facts of Darr v. Darr , 950 S.W.2d 867 (Mo. Ct. App 1997), which is cited by the majority opinion, seem to be more on point with the present case. In Darr,
. . . the agreement provided wife with a share of the marital property. Furthermore, wife not only had an opportunity to consult with an attorney, her attorney participated in the negotiations of the final agreement. Wife also spoke with several friends and expressed her concern about the agreement. Finally, wife's attorney specifically advised wife not to sign the agreement. Despite this legal advice wife signed the agreement anyway.
Id . at 871. In addition, the wife in Darr signed the agreement the day before the marriage. Id. Nonetheless, the court affirmed the trial court's determination that the agreement was valid. Applying the appropriate standard of review, the court in Darr held that "[i]n the presence of this evidence the trial court's decision finding the agreement was not unconscionable is supported by substantial evidence." Id. Likewise, there was substantial evidence to support the trial court's judgment in the instant case. When made, the antenuptial agreement was not so unfair as to now be rendered totally unenforceable.
(2) The majority points out that unconscionability is determined at the time the agreement was made. As a result, later events such as an increase in the value of a spouse's stock, greater income by one spouse, lack of income by the other spouse, or a decision that one spouse work in the home to raise the children, are irrelevant to the analysis of conscionability. Only circumstances existing at the time the agreement was made should be considered. Nevertheless, the majority implicitly examines the agreement using the present-day stance of the parties. The majority relies on the fact that, for most of the marriage, Mother stayed at home to raise the children, however, the agreement did not contain any provision that required Mother to quit teaching and remain at home. In fact, Mother states in her brief that the decision that she stay home was not made until "after the marriage." As a result, the fact that Mother stayed at home and produced no income is irrelevant to whether the agreement was unconscionable when made.
The majority also states that "the provision that attempted to define marital property . . . effectively excluded Mother, without justification, from virtually all assets that the marriage would acquire." Again, this considers the agreement in light of the parties present-day stance, rather than at the time the agreement was made. The agreement simply stated that each spouse would retain their earnings during the marriage as separate property. Had Mother produced an income during the marriage, Father would have been "effectively excluded" from it as well.
Given the benefit of hindsight, it is difficult to limit the analysis of unconscionability to circumstances existing at the time the agreement was made. However, if intervening factors since December 10, 1984, have impacted on the present financial disparity, and are to figure into the decision of unconscionability, then the appellate court must considerall circumstances arising since the time the agreement was made. This would include specific findings of the trial judge as well as the trial judge's disposition of marital property. For example, the various transfers that were made to Mother by Father in 1991, 1992, 1993 and 1994, causing her to acquire the estate and realize income, would have to be factored into the equation. Likewise, the trial court's finding that Mother had a gross income of $13,000.00 at the time of the divorce as a result of rental income from the Clay Street Duplexes conveyed to her in 1991 would need to be considered.
In addition, the trial court found that the marital estate consisted of the home, furniture and appliances and valued it all at $195,000.00. The court valued the home at $160,000.00, the furniture in Father's possession at $23,245.00, and the furniture in Mother's possession at $11,755.00. The trial court awarded Mother fifty percent of the marital property and ordered Father to pay Mother $85,745.00 to balance the equities. Mother was also awarded the marital home. According to Mother's brief, the court's ruling leaves Mother with $345,823.00. The separate property in her name consisted of her IRA's of about $35,000.00, an investment account of about $8,000.00, rental properties worth $119,000.00, her $16,000.00 car, and the marital home valued at $160,000.00.
The majority opinion states that "an important concern in measuring the conscionability of the terms of an antenuptial agreement is the attempted total exclusion of one spouse's presumed right to marital property." The majority further states that a disposition of marital property under the antenuptial agreement would "result in Mother having virtually no assets except those Father chose to give her and $2000 a year for each year the marriage survived, not to exceed $50,000.00." Clearly, the trial court's decision regarding the antenuptial agreement and the disposition of marital property does not leave Mother with "no assets." Rather, Mother received, according to her own calculations, assets valued at nearly $350,000.00, part of which earn her a gross income of $13,000.00. As such, when considering the circumstances at the time the agreement was made, orall of the relevant facts to date, I find that there was substantial evidence to support the trial court's decision.
(3) As part of the sixteen-page agreement (exclusive of attachments), Mother waived maintenance. This court has approved antenuptial agreement provisions where there was such a waiver. Heineman v. Heineman, 768 S.W.2d 130 (Mo.App. 1989). Under the agreement, and in consideration of her waiver as to maintenance and the contract definition of real property and marital property, Janice received $10,000, was made a beneficiary of a $100,000 whole life insurance policy on Father's life, received $2,000 per marriage year cash payment, $2,000 per year in an IRA, an automobile, and the deed to another piece of property. She later received the marital home.
The trial court not only found that the agreement waived maintenance, but also found Mother to have a college degree and capable of self-support, and, most importantly, found that Mother's "conduct has been such that she should be precluded from receiving maintenance." § 452.335.2.(9), RSMo., 1994. The trial court found that Mother "repeatedly denied her adulterous . . . activity for the 2 1/2 years prior to separation." Denial of maintenance should be upheld here because the agreement itself was not unconscionable. However, even if it was unconscionable under other portions of the agreement, the severability clause should save the portion on maintenance and it should be enforced. There was sufficient evidence of consideration to support the waiver. If the entire antenuptial agreement is to be struck down, the conduct of the mother supports this portion of the judgment.
(4) The agreement contained a severability clause. The action taken today ignores the contracted provision to save any of the provisions of the agreement. This court in McGilley v. McGilley, 951 S.W.2d 632 (Mo.Ct.App. 1997), has addressed the issue of utilizing a severability clause when part of the antenuptial agreement is capable of enforcement. In McGilley, this court held that the antenuptial agreement "was sufficiently comprehensive in scope and detail to avoid being held totally unenforceable . . . It is clear the parties intended to retain control of their separate property." Id. at 638. Similarly, the court in Darr generally found the antenuptial agreement conscionable, but then separately ruled that a single provision relating to attorney's fees could possibly be unenforceable. Darr v. Darr , 950 S.W.2d at 872 .
Finally, this antenuptial agreement was negotiated for five months prior to being signed in December, 1984, which was six months prior to the marriage. The parties have relied on the agreement. To void the agreement years later, without guidance as to how it should have been drafted in 1984, is incorrect. There was sufficient evidence to support the trial court's judgment on this issue. Considering the circumstances at the time the agreement was made, or all facts to date, the contract was not so unfair as to be now rendered totally unenforceable. Under the standard of review, there is no reason to throw out the agreement. I would affirm the judgment on this point.