Baer v. Baer

HARRELL, Judge, concurring.

I write separately (not for the practice but) because I do not see the necessity for much of the dicta in the majority opinion, particularly those portions where, in my view, the majority promotes as a consequence of the circuit court’s ruling that Mrs. Baer may be required to experiment with psychotropic drugs in order to satisfy the court whether she is entitled to modification of alimony.7 I also fail to see the need to include the forced medication legal analysis set forth in the majority opinion in order to decide this appeal. Nevertheless, because of the majority’s identified inconsistencies between the circuit court’s reasoning in its 13 July 1998 Opinion And Order and the evidence, I endorse the ultimate result. I explain.

The order embodying the previously agreed upon terms of the rehabilitative alimony award, which appellant sought to modify or extend, was dated 1 April 1996. The record extract provided by the parties in this appeal does not include any real background as to what was before the court on 1 April 1996 with regard to appellant’s psychiatric or emotional condition or history8, although we do know that her cancer surger*492ies and recuperation from them occurred before entry of the foundational order. Thus, we do not know what the court’s anticipation, if any, was regarding the future course or treatment of Mrs. Baer’s mental illness after 1 April 1996. In the posture the instant case reaches us, however, this deficiency is not of dispositive consequence because the unchallenged conclusion of the trial judge in his 13 July 1998 Opinion And Order was “that the continuation of [appellant’s] medical condition of major depression would qualify for an extension of alimony under Brashier v. Brashier [80 Md.App. 93, 560 A.2d 44 (1989) ].”

What sets the instant case apart from Brashier and Benkin v. Benkin, 71 Md.App. 191, 524 A.2d 789 (1987), of course, is that the ailing spouses in those eases apparently either sought generally accepted and appropriate medical treatment for the prevailing medical condition (Benkin, 71 Md.App. at 196, 524 A.2d 789) or were precluded from doing so, though apparently willing, by the loss of medical insurance coverage (Brashier, 80 Md.App. at 98, 100, 560 A.2d 44), while Mrs. Baer refuses such treatment outright. Thus, after the initial alimony award, Mrs. Brashier’s severe anxiety and depression9 (partially exacerbated by matters related to or flowing from the divorce) continued, and Mrs. Benkin’s arthritis worsened. Mrs. Baer’s severe depression, largely untreated in a conventional sense, also continued.

What might have supported therefore a different result in the instant case sub judiee from that obtained in Brashier and Benkin, however, was foreclosed in the instant case by the trial court’s unsupported and inconsistent conclusions based on the evidence it apparently found credible or by which it felt constrained. As the majority points out, the trial judge apparently rejected Dr. Siebert’s diagnosis of bipolar disorder, in favor of Dr. Muha’s identification of severe depression. *493Yet, ignoring the implicit limitations of Dr. Siebert’s drug treatment testimony regarding combining mood stabilizers with appropriate dosages of antidepressants to treat bipolar disorder, the court apparently felt constrained thereby and/or was persuaded that appellant’s refusal to take mood stabilizers and certain types or dosages of antidepressants contributed to her continuing depression.10

Of greatest consequence to me, however, was the court’s conclusion that appellant’s “depression is one of the reasons she rejects these drugs.” Giving full play to the trial court’s superior ability to assess witness credibility and the court’s broad discretion in these matters, I interpret this statement as the court concluding that appellant’s mental disease or condition was a proximate cause of her refusal to seek appropriate treatment. Assuming that to be so, her condition then was inseparable from her refusal to seek treatment, and the isolation of the latter would not therefore be an appropriate or logical ground for denial of her alimony modification request. As the trial court explains its judgment, it cannot stand. Therefore, I join in the majority’s result, but based on a bit leaner analysis.

I add, in closing, that the acceptance of personal responsibility for the consequences of one’s voluntary and free conduct (which principle I perceive as undergirding the trial court’s reasoning in this case), is a value that generally resonances with me. What I am unable to reconcile in the application of this principle in the instant appeal, however, is that the court apparently concluded that Mrs. Baer is sick and that her sickness feeds on itself to impede her maximum possible improvement. Under such circumstances, appellant’s decision to refuse a particular treatment regimen cannot be deemed to be a free and voluntary decision.

. It seems to me that, in lieu of experimenting with the drugs in an effort to satisfy the court, Mrs. Baer could seek to produce competent expert testimony to counter Dr. Siebert’s conclusions and opinions in that regard. Obviously, Dr. Muha, a clinical psychologist, was not such a witness. Moreover, a qualified expert could flesh-out Mrs. Baer’s anecdotal references to her adverse reactions to prior medication and perhaps interpret those idiosyncratic results in terms of the known properties of newer drugs, including the drugs discussed by Dr. Siebert.

. A copy is included in the record extract of the 13 November 1995 proceeding in open court where the parties’ agreement was put on the record. Appellant’s former counsel, inquiring of appellant as to her understanding of the 5 year modifiable rehabilitative alimony component, framed a single question to include “should your condition worsen, you [ ] would be free to come back and ask for an increase, you understand that?” Other than this vague allusion, the extract in the *492instant appeal casts no light on what the court may have appreciated about Mrs. Baer’s "condition” at that time.

. Her agoraphobia did respond favorably to treatment, however.

. Appellant was taking an antidepressant, zoloft, which Dr. Siebert thought was at too low a dosage. In any event, Dr. Siebert believed only a combination of antidepressants and mood stabilizers would treat adequately appellant’s bipolar disorder.