Garner v. Garner

193 So. 2d 673, 1967 Fla. App. LEXIS 5182
CourtDistrict Court of Appeal of Florida
DecidedJanuary 13, 1967
DocketNo. 7116
StatusPublished
Cited by9 cases

This text of 193 So. 2d 673 (Garner v. Garner) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Garner v. Garner, 193 So. 2d 673, 1967 Fla. App. LEXIS 5182 (Fla. Ct. App. 1967).

Opinion

SMITH, HAROLD S., Associate Judge.

The appellant, James Franklin Garner, III, and the appellee, Jane Norton Garner, were divorced and in the original decree of [674]*674divorce, the court ratified a stipulation between the appellant and appellee agreeing that the custody of the minor children should be in the husband-appellant. The husband’s parents, who were the paternal grandparents of the children, were temporarily given the physical custody of the children. The reason given for placing the children in the custody of the father and of the paternal grandparents was that the mother was emotionally unstable and unfit to have tlie custody. The original decree provided for the application by the mother for custody at such time as she was rehabilitated. Fifteen months after the divorce decree was entered, the mother applied for custody and the lower court granted the custody to the mother.

The appellant, the father of the children, has appealed from this order, and alleged as follows:

1. That the mother has failed to show that conditions have materially altered as to her emotional situation.
2. She has failed to show that a change of custody would be in the best interest of the children, whose ages are seven and eight.

He argues further that the only change in her situation is her remarriage and the acquisition of a home. He points out that the Chancellor made no finding on the question of her mental rehabilitation nor did he find that the present custody was improper or harmful. It was stipulated by the parties that the paternal grandparents were very fine and economically able to support the children and the court commented that they were wonderful people to have the custody. The appellant argues that there must not only be a change in the wife’s circumstances but the present custody must be harmful to the children in order to warrant a change. He further argues that the court’s explanation of why he was changing his custody showed that his concern was for the mother rather than for the welfare of the children.

The challenged statement of the lower court is as follows:

“My first thought about this was that your marriage is of such duration that there is some question possibly about— there’s a possible question — some doubt is being cast upon your emotional stability by the testimony I have heard here, that it might be a good idea to allow these children to stay in their present custody for such period of time as is necessary for me to feel that you were suitable to have the custody of the children again but the thought that you have gone through this so long, and this has been the second hearing on this, it has undoubtedly been a lot of trouble and a lot of expense for you and you seem to have held up very well under it and the prospect that you would have to go through this again and possibly another, let’s say an ideal period, when he would be getting out of law school and there wouldn’t be any question about his duty to support his children immediately upon his getting a job. I have thought for awhile that this might be the way this might be best solved, but I don’t think, as I pointed out the things involved in it, that you would have to go through again and that this long period of time would elapse before you would actually have any real close contact with your children again. I don’t think it would be quite fair, while I think they are in a fine family now and they have a fine home, I know the decisions are that the mother should have an opportunity and the natural father should have an opportunity to establish a relationship with their children that this may be of — I think they say this is about equal with the children. This has made me feel that the custody of the children should be changed at this time.” (emphasis supplied)

The appellee-mother maintains this merely shows that the court judged the mother’s mental stability in the light of her ability to withstand the pressure of two hearings, [675]*675the trouble and the expense of same and since the mental stability of the mother was the only issue this was the only reason custody had been taken from her subject to her rehabilitation. On the issue of her mental rehabilitation, the appellee-mother presented testimony of two psychiatrists who had seen her for determination of whether or not she was emotionally capable of rearing her children. One of the doctors saw her for an hour, more or less, and the other on two visits saw her for a total of seventy minutes. Their testimony was that she was emotionally stable enough to care for her children.

One of the mother’s psychiatrists, a Dr. Shipton, testified that he had not interviewed the children and, “ * * * there are always residuals, so it is a matter of whether these residuals are disabling or not.” He further stated that he had not consulted with the treating physician, Dr. Koenig, and that he did not perform any of the standard tests. The mother’s other consulting psychiatrist, a Dr. Fessenden, stated that he had made no diagnosis, particularly, of the mother and that he had had no contact with any of her prior treating physicians nor had he had any of their reports. On the other hand, the treating physician, who had treated the mother during the earlier episodes in her life testified that after treating her for several months that he found the mother to be psychotic and that she was serious about her suicide attempts earlier. He further stated, “ * * she worked because she didn’t want to be home taking care of the children.” He further stated that as of the termination time of her treatment, she was a schizophrenic, a schizoid-affective in good remission. He went on to say that this will recur — in fact, it did recur after her discharge from his treatment in the form of her making another suicide attempt. He stated that in the face of stress, she had regressed to a psychotic condition. He flatly said, “I feel she is not a good mother.” He went on to say that her situation can become active again and that it would be a gamble to place the children back with her and that his prognosis was that her condition will reappear. Dr. Koenig further stated, “ * * * her having the children is one of the causes of her illness, one of the pressures — she has been without that pressure.” His inference was that her release from her association with the children had relieved the pressure that had caused her mental condition. He testified that her removal from marital discord does not alter her underlying chronic schizophrenia and does not alter her underlying feelings that arose following the birth of her first child. A Dr. Palmer testified that one of the children of the marriage had been quite emotionally upset prior to coming to the grandparents. He testified that this child is well and happy and that, in his opinion, it would be in the best interest of the children to remain in a stable situation because to remove them from this could cause further upsets. The record is replete with testimony of several lay witnesses of the progress being made by the children in their situation of a stable home with their grandparents.

In all proceedings relative to the custody of minor children, the guiding star of the determination is the welfare of the children—Jones v. Jones, 1945, 156 Fla. 524, 23 So.2d 623; Phillips v. Phillips, 1943, 153 Fla. 133, 13 So.2d 922; Wooten v. Wooten, Fla.App.1960, 160 So.2d 746.

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Cite This Page — Counsel Stack

Bluebook (online)
193 So. 2d 673, 1967 Fla. App. LEXIS 5182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/garner-v-garner-fladistctapp-1967.