Kessler v. Spohrer

428 So. 2d 1350, 1983 La. App. LEXIS 8084
CourtLouisiana Court of Appeal
DecidedMarch 11, 1983
DocketNo. CA-0367
StatusPublished
Cited by1 cases

This text of 428 So. 2d 1350 (Kessler v. Spohrer) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kessler v. Spohrer, 428 So. 2d 1350, 1983 La. App. LEXIS 8084 (La. Ct. App. 1983).

Opinions

BARRY, Judge.

This is an expedited appeal1 by a father from a judgment in a pending separation suit which awarded custody of his 2-year old daughter to the mother. The father argues the lower court erred because the mother is physically incapable and emotionally unstable due to severe anorexia nervo-sa.

On July 22, 1982, Connie Spohrer, the mother, sued William Spohrer for a legal separation, and she also filed a rule for custody of their child, Heather Spohrer, who was born on September 23, 1980. The father had custody of Heather when suit was filed which custody had been continuous and exclusive for nine months beginning in January, 1982. Mr. Spohrer an[1351]*1351swered his wife’s petition, reconvened for a legal separation, and asked that his custody be maintained.

The custody hearing was held on September 10,1982, and judgment was rendered on September 15, 1982, in favor of the mother which removed Heather from her father’s de facto custody. The father filed a Motion for a New Trial or alternatively for reargument which was denied; then he immediately applied to this Court for supervisory writs which were refused. He then filed this appeal requesting disposition be expedited to minimize interruption of the child’s living arrangements.

The trial court found that the parties’ child (approximately two (2) years of age) had “lived with the father for the last eight or nine months.” The court concluded that even though the mother “was ravaged” by the disease of anorexia nervosa, she could tend to the needs of the child with the help of her mother, and removed custody from the father.

The Trial Judge’s Reasons do not mention the “best interests of the child” or the impact on the child of changing the father’s de facto custody. The court did acknowledge the serious nature of the mother’s illness, including the high mortality rate associated with anorexia patients. The Reasons emphasize and lean on the availability of the maternal grandmother “at all times to help care for the child, if the need arises.” The custody decree, however, is not conditioned upon the mother’s continued residence with her mother, and in fact awards $430 per month alimony and child support which increases the possibility Mrs. Spohrer will seek a separate domicile for herself and Heather.

The lower court also cited the “advantage” to the child in living with her mother and maternal grandparents, instead of with the father who took the child to the paternal grandparents’ home on weekdays during his working hours.2 Mrs. Spohrer, however, testified she plans to try to return to work whenever she is capable. It seems, therefore, that the “advantage” to the child of her mother’s constant presence will continue only so long as the mother is psychologically and physically unfit to hold a job. We find this criteria of dubious benefit to the child, while penalizing the father for his ability and need to maintain gainful employment.

At the hearing two psychiatrists who treated the child’s mother testified she is seriously ill and needs intensive psychotherapy. She has suffered from anorexia ner-vosa since 1978 and throughout her three year marriage to the father and has been hospitalized for this condition at least three times during their marriage. Only a few months before the custody hearing, Mrs. Spohrer was hospitalized continuously from January through May of 1982, first at West Jefferson Hospital and thereafter at East Louisiana State Hospital in Jackson. Her condition is described as a severe personality disturbance which manifests itself in a compulsive syndrome of dieting, over-eating, then self-induced vomiting. Underlying this obsessive behavior are unresolved anxieties, fears, guilt feelings and depression. Despite evidence that her condition is life-threatening, she discontinued all psychiatric treatment, although she sees an unlicensed therapist once a week and in a group session every two weeks.

Mrs. Spohrer is 5' 8" tall. During one of her hospitalizations her weight dropped to 62 pounds and she refused nasal tube feedings until warned her life was in serious danger due to the excessive weight loss. Although her weight increased to nearly 100 pounds (still a pathetic figure) during hospitalization in the spring of 1982, by trial in September her weight dropped again to between 65 and 76 pounds. The Trial Judge, as well as her psychiatrists and other witnesses, noted Mrs. Spohrer’s appearance at the hearing indicated she was “ravaged by this disease.” Both psychiatrists testified Mrs. Spohrer’s condition had deteriorated since they last treated her. Somehow the Trial Judge felt “her emotional stability certainly appeared acceptance [sic] to this court.”

[1352]*1352Dr. McGregor, who saw Mrs. Spohrer 29 times from March 21,1981 through July 22, 1982 and testified as her witness, acknowledged she has an obsessive personality disorder and “if she doesn’t get successful treatment for this [condition], she will be life-endangering.” When asked if Mrs. Spohrer’s condition would be harmful or dangerous to her child, Dr. McGregor responded he had insufficient data to answer. He opined that her condition would “not necessarily” be detrimental to her ability to care for her child, feeling that “It could go either way. The reason being that some people who don’t take very good care of themselves sometimes take excellent care of other people.” (“Sometimes” is a dangerous risk.) Dr. McGregor believed that, “in general, a child this age, if it cannot have both parents, needs the mother more than the father, even if the mother has serious psychological problems, as long as they do not prevent her from mothering the child adequately.” This indicates the possible physical ability to “mother”, but totally ignores the mother’s “serious psychological problems.” He candidly admitted he did not know whether Mrs. Spohrer’s illness would impair her ability to care for the child’s needs.

In contrast to Dr. McGregor’s uncertainty, Dr.' McKenzie, who treated Mrs. Spohrer during her most recent hospitalization, testified her “condition would certainly impair the ability” to care for her child. Dr. McKenzie stressed Mrs. Spohrer’s preoccupation with her own problems and the ritual of over-eating, vomiting, and starving would leave her with no energy to care for this healthy, thirty-one pound 2-year old.

There was conflicting testimony as to the quality of Mrs. Spohrer’s mothering during the child’s infancy while the parties lived together. Mrs. Spohrer said she got up every morning and took care of Heather while her husband was at work. She said she fed, bathed, changed, and dressed the baby and ran the house. Mr. Spohrer testified he primarily took care of the child since birth due to his wife’s disability. He cited occasions when his wife was too weak to get out of bed without assistance and her inability to pick up the baby. He said he changed the child’s sheets every morning and fed her at night while the mother was alternately eating and vomiting. According to Mr. Spohrer, his wife left home several hours every night and he took care of the baby and cleaned the house.

Mr. Spohrer had custody of Heather during his wife’s lengthy hospitalization from January through May of 1982, (which included incarceration in Jackson) and continued custody in the couple’s apartment after the spouses separated in June until the custody hearing on September 10, 1982.

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Related

Parker v. Parker
648 So. 2d 34 (Louisiana Court of Appeal, 1994)

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Bluebook (online)
428 So. 2d 1350, 1983 La. App. LEXIS 8084, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-spohrer-lactapp-1983.