*1 in estate Harriett’s the assets included than rather appellees, Trust, allegation no or there is Family assets or the Thus, other than the such claim. supports which evidence correct the trial court was accounting, for the request of appellees. VIII favor judgment on Count entering FOR HOW- THE CIRCUIT COURT OF JUDGMENT IN IN PART AND VACATED AFFIRMED ARD COUNTY PROCEED- PART; REMANDED FOR FURTHER CASE OPINION; COSTS TO THIS CONSISTENT WITH INGS AND BY APPELLEES PAID THREE-FOURTHS BE BY APPELLANT. ONE-FOURTH A.2d 923 BAER
Laudie J.
v. L. BAER. Marvin Term, Sept. No. 1998. Special Appeals Maryland.
Court 7, 1999.
Oct.
Harrell, J., concurring filed a opinion. *2 (Krause brief), William M. Ferris & Ferris on the Annapo- lis, for appellant. Baltimore, Ruter, appellee.
Gerald C. ADKINS, HARRELL,* HOLLANDER Argued before JJ.
ADKINS, Judge. Baer, 'filed a com- 8, 1994, appellee, L. Marvin August
On Baer, appellant, from Laudie J. divorce for an absolute plaint County, upon based Anne Arundel Court for the Circuit 1996, 25, ap- January On voluntary separation. into entered agreement separation a marital proved alimo- rehabilitative for, modifiable calling inter parties, alia> April absolute divorce granted ny. Mrs. Baer Mrs. Baer agreement. previous incorporated which motions, including a motion a series subsequently filed hearing After a alimony. aforementioned modify the *3 for modifi- request motions, appellant’s court denied the trial filed. appeal timely This was alimony. cation of the trial to consider whether Mrs. Baer asks us 1) alimony: of a modification denying abused its discretion treatment with the undergo not basis that she would for her de- medications type psychotropic of recommended and employment; full-time her from prevented that pression 2) surgeries for colon unexpected by not considering recovery period. and incapacity and the associated cancer AND PROCEEDINGS FACTS LEGAL 1983, Mrs. Baer was when were married parties The age. of No children years was 49 age and Mr. Baer years 1993, marriage. July a result of their were born as 8,1994, Mr. Baer August on and voluntarily separated, parties 1995, 13, at a scheduled On November filed for a divorce. they had reached an date, that parties announced hearing * Harrell, J., Appeals, participated in the now a member of the Court Court; this he while a member of decision of this case conference and opinion as a member of this Court adoption of this participated in the designation. by special
agreement issues, covering property and support they which time, read into the At that they agreed record. that neither party would proceed 1, obtain a divorce until January after 1996. 23, 1996,
On January the trial court signed an order incor- all of porating the terms of the parties’ agreement according to the terms announced at the November This hearing. order provisions included for payment of “modifiable rehabilitative alimony” years 1, Mrs. Baer for January five from 1996. alimony The was to paid at a rate to be determined formula, $4,000 not to month, exceed per until the parties’ marital home was sold. The formula payment called for of the two mortgages home, parties’ utilities, marital per month in cash to Mrs. Baer. After $430 the house was sold, Mr. pay $2,500 Baer would per month through 1998, and $1,500 thereafter at the rate of per month until the year end of the 2000. Mrs. $36,777 Baer also received distribution from Mr. Baer’s University Maryland pension, and a small portion military of his pension, to be paid monthly. agreed Mr. Baer to pay Mrs. Baer’s health insurance through year the end of the $48,000, marital assumed debts of $4,500 paid in counsel fees for Mrs. Baer. Mrs. Baer opposed entry January order, asserting a January 1996 letter to the court that the November 1996 agreement was not equitable, she did appreciate “understand and what she agreeing to.” The court nevertheless signed the order incorporating the agreed terms and included a handwritten note that stated: *4 the order comports “Since with the transcript, it has been A signed.” judgment for absolute divorce was on entered 1,1996, April incorporating the January terms 23 order. No appeal was taken from judgment. this 1997, in
Beginning March after the marital home had been sold,1 Mrs. Baer filed a series motions regarding Although parties 1. agreed agreement in the 1996 the house 1, 1996, by April would be sold it was not sold such date. The house order, including re- January in the alimony called for 1) and extend the rehabilitative to: increase quests 2) cancer; and from colon ongoing recovery because of her from the recovery after alimony because even award indefinite living which is a standard of could not “attain surgeries, she of’ Baer. Mrs. with that Mr. unconscionably disparate 11, 1998, in the on June 10 and motions were heard Baer’s circuit court. Background
Factual retiring After prosthodontist. Baer is a board certified Mr. Force, Air he States of the United corps from the dental Mary- University at the Associate Professor served as an practice. dental part-time maintained a School and land Dental case, earning a Mr. Baer was in this hearing At the time of the $81,628 plus University, from the salary of annual gross year Air Force. For the $55,668 from the pay in retirement $20,368 his part-time from 1997, an additional he also earned 1997, his income from dentistry. After practice” of “faculty cut back his because he practice decreased part-time dental hours. working chemistry, in research holds a doctorate
Mrs. Baer a married, employed as she was parties when the were Laboratory. She was Naval Research chemist at the research complete for failure position from that terminated then, sporadically, employed, she was assignment. Since instructor, instructor, lifeguard. At the yoga as a ski days or two as a working one hearing, of the she time Health Cen- University Maryland massage therapist at the upon the ter, pay depended hour. Her earning per $34 monthly income daily. treated Her patients number of she employ- to be from her of 1998was estimated spring $170 $1,500 retirement, Air ment, from Mr. Baer’s Force $126 alimony. 22, 1996, proceeding November mortgage foreclosure was sold at a bankruptcy, and July following Mr. Baer’s 1996 declaration proceeds the sale of the apparently parties received no net from foreclosure, bankruptcy. also filed After the Mrs. Baer house. *5 1995, In February Mrs. Baer was diagnosed with colon cancer. Although several of physicians she consulted regarding her cancer recommended surgery, she declined surgery, believing that she could overcome the cancer with homeopathic medications and proper 1997, diet. July her cancer caused rupture, her colon to and she underwent emer- gency surgery to remove the cancer part and of her colon. As a result of episode, that she was unable to work from July 1997 through September 1997. In October and November 1997, she worked as a message therapist, only but one day week, being that all she “could handle.” 1997,
In December required she surgery, additional a re- colostomy, result, verse and as a was unable to work for two 1998, months. In March she position resumed her as a message therapist on the two days per week schedule she maintained at the time of the hearing. She that testified June her surgery recent was still affecting her ability to work, as she was still in the recovery process. She also said that the surgery caused adhesions to form in her intestines and nerve damage area, pelvic her and she was undergoing acupuncture treatments for the latter condition.
Mrs. Baer has a history of mental health problems, dating from teenage years. She attempted suicide once as a teenager and twice while an adult attending graduate school. adult, As an she was hospitalized three times for depression, and was under the of a psychiatrist care for various periods during her life. During years the five preceding hearing below, she was not a psychiatrist’s under care. began
She consultations with a psychologist, Dr. Thomas Muha, on January 1997. Dr. Muha opined that she suffers from “severe recurring depression with psychotic features.” He psychotic described her features as an episodic difficulty “being able to assess reality of situations that facing she is and that significantly impairs her judgment,” gave as an example her refusal to undergo surgery to remove the cancer despite her colon the recommendation of multiple doctors. He also testified that depression causes her to have a low mini- absolutely for stress is level, “her tolerance energy stress level appellant’s opined Dr. Muha mal.” that she could in the extent limited fatigue, she was chronic *6 be the probably would days [per week] work, “one or two and Dr. Muha also can function.” she level at which optimal and that recovery good,” “not is prognosis that the opined continue going that she’s to percent probability an 80 “there’s problems.” have severe to that would are medications that there
Dr. Muha indicated Baer, but by Mrs. depression suffered for the appropriate of those identity the opinion regarding express declined doctor, I am not medical so medications, “I am not a saying: that____” however, “I that reported, He to answer qualified recommended, referred, encouraged certainly suggested, fact, did, in at about that. She physicians to her speak her to if she used opinion his that even that.” It was urging, do my stay medications, unlikely would be she additional problems. experience so dosage, and would proper Baer Siebert, testified for Mr. psychiatrist, Dr. Stephen medi- He reviewed her mental health. Mrs. Baer’s regarding with her to determine meeting a two-hour history, and had cal functioning. current level of of mind and her current state that, she no current although exhibited conclusion was His evi- meeting, presented her records during their symptoms explained bipolar He disorder. disorder. bipolar dence of a by Dr. Muha from that of diagnosis his He differentiated explaining: life, in their it episode any manic at time
If a has a person of a diagnosis in a appropriately would be most —result as Dr. disorder, depressive a recurrent disorder bipolar very readily ... this condition is a offered Muha has conditions This is one of the few condition.... treatable actually prevent where we can psychiatry ... all illness. symptoms prevent can hospitalizations. We prevent
can We episodes. We depressive can prevent We psychosis. that will treatments manic There are prevent episodes. can maintain stability, mood allow a person cope with the life, normal stresses of people allow to function in a way. normal
Dr. opined Siebert that a relatively new class of medications to as Baer,2 referred “mood stabilizers” would benefit Mrs. and indicated that her records reflected that she had not taken medicines, any lithium, these exception with the in the past. He recommended that these be combined with antide- medications, pressant and that she should be regu- monitored larly by psychiatrist. He explained that most of the medi- cines that he only recently introduced, recommended were were not available five years ago, when she was last treated aby psychiatrist. opined He further fatigué that is depression caused regulated “could be or could [be] improved with appropriate medications.”
Dr. Siebert expressed his belief that “she has denied herself from competent [sic] and reasonable medical treatment that is readily in in available this area terms of treatment depres- sion, for low energy and for mood stabilization.” He acknowl- edged that presently zoloft, she takes an antidepressant medi- cation of type recommended, that he but that dosage her was not sufficiently high help Further, her. he opined that she should not be taking an antidepressant without simulta- neously taking stabilizer, a mood as antidepressant could cause her problems. further
Mrs. Baer testified that she unwilling to take mood stabilizers, lithium, such as that Dr. Siebert recommended. She explained:
I have had a number of experiences two, in which these — medical professionals have prescribed that type of medi- me, cation for they and ... very weren’t careful about what did, they and it caused me serious harm. specifically
2. He following recommended the tegre- mood stabilizers: tol, depakote, gabapentin, lamotrigine. and He indicated that lithium was a mood risperdal stabilizer. He also ayprexa recommended or as safe medicines for paranoia. someone who suffers from delusions or I’ll make and my my responsibility I that life is And feel I should take. And what medications the decisions about homeopathic I a lot of success with right having now am recommends. homeopathic doctor] [her medications that I comfortable very no and am And there are side effects that. with with experiences specific negative about her
When asked medications, an occurrence Mrs. Baer described psychotropic medication, unspeci- psychiatrist prescribed when a fied, perspiration mechanism.” “essentially my that shut down she working lifeguard as a when that she was explained She that medication, had not advised her this that her doctor took it, taking to the sun while exposure should avoid she sick. She also indicated very she became consequently, her, given but had lithium for prescribed another doctor had monitored her dosage properly and had not high her too with blood tests. Ruling
The Court’s court, appellant’s described opinion, trial its written The improved as it was to be that “her health has position would, gap disparate, is thought it that the income originally that Mrs. money.” agreed that she needs the The major depres- medical condition of Baer’s “continuation her our qualify alimony” sion would for an extension under Brashier, Md.App. in Brashier v. 560 A.2d decision (1989). It stated: further Muha, psychologist, Dr. that she has a agree
We defined, exactly depression, severe however *8 ten hours much present difficulty enough working state has hours____ grounds for forty proper All of this could be less alimony. further indefinite
However, of treatment. Mrs. Baer problem there is the drugs; to she claims bad psychotropic does not want use Siebert, expert Dr. experiences past. [Mr. Baer’s] many today are new medicine’s psychiatrist, notes there complains of. not have the after effect Mrs. Baer which do of Dr. expertise is outside the drugs Since use of such this, Muha, leaving on Dr. Siebert’s he declined to comment only addition, In testimony direct on this issue. there suggestions were that other doctors had recommended med- ication to Mrs. Baer without success. treatment, Baer is any just
Mrs. entitled to refuse as she cancer, regard although did with to her it almost cost her However, It body, life. is her and it is within her control. if she wants to alimony, going continue her she is either to to drugs they have use these or have solid evidence that would harm her. depression rejects
While her is one of the reasons she drugs, these we believe she is capable making a free will decision to use or not use such drugs. Since she has date, refused to use despite competent them evidence that, they necessary are and that she has been told must we deny petition her for an increase. relief,
This does not mean she cannot seek such [medical] fails, if it alimony. seek extension She has until [an of] However, year the end of the 2000 to do that. on the state of facts deny as we find them we the relief. filed a motion to or
Appellant alter amend the order based motion, on solely physical condition. appellant condition, that in argued focusing psychological court “overlooked the surgeries.” By unforseen or- [cancer] 13, 1998, motion, August der dated the court denied stating that “it is her refusal to get treatment that has prolonged part of the case.” The court appel- awarded $1,500 in attorneys’ fees. Appellant timely filed this lant appeal.
DISCUSSION I. Trial Court Base
Whether Could Denial of Petition to Alimony Psy- Increase on Mrs. Baer’s Refusal to Take chotropic Improve Medications to her Mental Health Ability and Increase her to Work Appellant’s first is that argument the trial court abused its by refusing modify discretion rehabilitative
479 simultaneously found that Mrs. alimony when it indefinite condition, and “mandate debilitating mental health Baer had only again ... then file drug therapies, to that she submit to harms her or fails therapy actually if that for modification why five reasons this deci- the She offers problem.” resolve error, briefly an which we summarize: sion was (1) trial court’s conclu- support does not the The record to deciding to make the decision capable sion that she is medications. taking psychotropic submit to (2) modification, by her income will decrease Without a 40%, inequitable harsh result.
(3) the trial court will at least imposed by The condition unjust experi- interim loss of income while she result an case, trial on a second ments with the medication and awaits worst, seriously ill. or at will make her (4) trial, at taking antidepressant She was medication alimony not on a and the court should have conditioned particular “modality of treatment.”
(5) notion that an who suffers from a “The individual or her mental condition that causes or contributes to his can, reluctance to seek treatment for that condition reluctance, ... alimony patently basis of that be refused is contrary reason.” trial court not abuse its
Appellee contends did discre- tion in denying request modification agreed by parties. agree appellant deny-
We
that the trial court erred
ing
petition
grounds
for modification on the
her refusal
certain
Our reasons are
psychotropic3
take
medications.
similar,
identical,
by
although
appel-
to several advanced
lant. Because our decision is influenced
common law
underlying
regarding
right
doctrine
to bodi-
principles
"
upon
‘Psychotropic’
3. A
medication is one that acts
the mind or
Hygiene,
psyche.”
Department
Beeman v.
Health & Mental
(1995)
Md.App.
(citing
159 n.
A.
Right
Bodily Integrity
The
to
and Informed
—
Consent
Forcible Administration of
Psychotropic Medications
physician, treating
Under our common law “a
a men
circumstances,
tally
adult
competent
non-emergency
under
perform surgery
cannot
undertake to
or administer
properly
other
without the
consent of his
therapy
prior
patient.” Sard
(1977).
432, 438-39,
Hardy,
v.
281 Md.
Under the law of informed an adult has the right treatment, to refuse if even the refusal has detrimental effect, long so as the competent. individual is The Fourth Circuit Appeals Court of explained: very
The foundation of the doctrine informed [of is consent] everyone’s right forego treatment or even if cure it entails what for him are risks, intolerable consequences or however warped perverted or his sense of may values be in the eyes of the medical profession, or even of the communi- ty, so long any as distortion falls short of what the law regards as incompetency. Individual freedom guar- here is only anteed if people given are right to make choices that would generally regarded as foolish ones. th Charters, (4
United Cir.1987). States v. 829 F.2d 495 Although courts respect will a competent adult’s right treatment, refuse individuals have been restrained from exer- cising that right physical when injury to other persons is at Thus, risk. may the State administer psychotropic medi- cations to inmates who likely are to cause harm to themselves others, or provided there is a medical finding that “a mental disorder harm,” exists which is likely to cause [such]
482 Williams, 319 Md. at met. process is constitutional due 220-23, 110 494 U.S. at (citing Washington, A.2d 809 Roe, 421 N.E.2d 1036-37); Guardianship also at see
S.Ct. men- rule for noninstitutionalized a similar (recognizing at 60 ill tally persons). address, case, directly, the issue we do not In present — forced admin- above cases mentioned by the
presented in denying appel- Yet medicines. psychotropic istration of solely because she claim for modification lant’s modality psychotropic to take certain failed or refused of the principles medications, implicated has the court implica- The informed consent. integrity and right bodily critical apply us to a more of law cause body tions from this the trial court’s supporting rationale eye to the evidence decision.
B. Consequences Responsibility for Adverse Take Medication Refusal To effects, monetary conse- adverse are sometimes There to medical treatment. refusal to consent person’s of a quences, upon called to determine been infrequently have Courts should be of a decision monetary consequences whether the three to, have found party. another We by, shared or shifted has to a who monetary plaintiff relief which denied cases treatment, and the refusal had detrimental refused medical effects. (D.S.C.1997), States, F.Supp. v. DeMary United *12 determining damages held that District Court
the Federal accident, a court could airplane who survived plaintiff to a refusing reasonably plaintiff the acted consider whether traumatic stress post to cure his medications antidepressant Postal 1111; Franklin v. U.S. id. at see also syndrome. See 1988) (S.D.Ohio 1214, Service, (plaintiffs 1218-19 F.Supp. 687 ADA violation of the was not a discharge employment from psy- to take handicap by refusing exacerbated her when she her refusal schizophrenia, for chotropic medication violent actions while criminally to commit caused her 483 job). In Hart v. City Jersey City, 487, 308 J.Super. N. 706 (App.Div.1998), A.2d 256 a New Jersey appellate court denied tort police claims of a against city, officer reasoning “liberty self-determination, that his interest in medical includ- ing right to refuse unwanted medical care” was not violated when the officer was required alcohol coun- accept seling as a condition of his employment. continued Id. at 259. The court pointed officer, out that the plaintiff, police as a had sway arms,” “authoritative access had been exhibit- ing alarming behavior. Id. at In 260. considering right his self-determination, to medical it patient’s reasoned that “the rights have often weighed against been interests oth- ers.” Id.
Sometimes, courts willing have been to shift the monetary consequences of refusal of treatment when the decision is by illness, affected mental though even patient is compe- tent. Pennsylvania, courts have held negligence suits claiming personal injury, plaintiff required is not comply with the normal requirement to mitigate damages his by obtaining psychiatric treatment, when his refusal to under- go psychiatric treatment is a manifestation of his emotional injuries. See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 1174, 611 (1992); A.2d 1176-77 see also v. Browning States, 17, (E.D.Pa.1973). United F.Supp. aware,
We have not been made found, nor have any we cases addressing the issue of whether an of alimony award can predicated upon a spouse taking psychotropic medication to spouse’s enhance the ability to work. But In re DeLaMot- cf. DeLaMatter, ter v. 151 Wis.2d 445 N.W.2d (“when (Ct.App.1989) alcoholic spouse has medically refused recommended treatment and then claims a need perma- nent maintenance alcoholism, because such refusal” court). must be considered
C. Analysis Expert Testimony and Other Evidence
When a trial spouse’s conditions a right to seek a modification in the spouse’s taking psychotropic
484 expert to the recommendation pursuant medications mental illness testimony regarding witness, expert to the particularized reliable and highly must be treatment Guardianship is at issue. See health whose mental individual (when issue involv evaluating an Roe, at 58-59 421 N.E.2d ill a court mentally person, of a medication ing psychotropic rules to see and general factors statistical beyond “must reach ” Belcher (quoting situation’ singular of the complexities ‘the 417, Saikewicz, 728, N.E.2d 370 373 Mass. v. State Sch. town case, find of this we (1977))). the circumstances Under 428 court was by the trial testimony upon relied expert that the explain. its We support decision. not sufficient alimony by set modify petition a In to sustain order a must demonstrate moving party judgment, prior a Blaine v. See justifying modification. in circumstances change (1993), aff'd, 336 689, 710-11, A.2d 191 Blaine, 632 Md.App. 97 (1994). a considering petition 49, 413 646 A.2d Md. to determine modification, trial court has discretion Levin, Md.App. v. 60 alimony, see Levin and amount extent specific (1984), must consider 336, 935 325, 482 A.2d (1984, 1999 See Md.Code exercising its discretion. factors (“FL”). Article One Family Law § 11-106 of the Repl.Vol.), seeking alimony ability party of the is “the those factors 106(b)(l). §FL self-supporting.” wholly partly or 11 - found that because the trial court case present In the Mrs. expected, as improved had not mental health appellant’s week. The per hours more than ten unable to work Baer was change satisfied both finding this court considered limi present and established requirement, circumstances find that the We self-supporting. to be ability tations on Brashier, v. See Brashier this conclusion. supports evidence denied, 565 317 Md. cert. 93, 101, 560 A.2d Md.App. after a (1989) (continuation illness depressive of a A.2d to become rehabilitative justify modifying can divorce alimony). indefinite have not seen step, one we an unusual then took
The court solely relief decision, denying appellant’s by reported in any modality she had not psychotropic because utilized medi- witness, Mr. expert cation recommended Baer’s Dr. Sie- *14 Although did not specify type bert. the court exact of used, she it drug gleaned should have from Dr. Siebert’s testimony many that are new today “there medicines which do not have the after effect Mrs. Baer of.” complains Mr.
Upon request, Baer’s Dr. Siebert interviewed Mrs. for Baer two hours and reviewed her medical records. Dr. that Mrs. no symptoms Siebert testified Baer showed of mania, depression, anxiety, or other mental illness in her interview, and that concluded her illness remission. was He that no opined also she had limitations on the nature or extent potential of employment. records, Based on medical however, Dr. Siebert concluded that Baer suffering Mrs. was disorder, bipolar diagnosis from a a from differing Mrs. Baer’s who psychologist, diagnosed major depression. Dr. Siebert that a explained bipolar disorder was an “episodic disorder ... that life.... A punctuates person’s a functional person that will episodes, episodes have discrete of illness that will strike for of them down a weeks to period months and render that person basically temporarily.” respect disabled With Mrs. he Baer said: can Baer’s history see Ms. she symptoms
[W]e that had college, nevertheless was able to college, graduate. finish Then she had a of time stretch where she did well again. episode Then she had another illness that resulted in a hospitalization prior second to her earning her Ph.D. is apparent
It that she has an which illness from she has a recovery. will That she recover from more severe it, disabling aspects aspects condition .... basically get will on with her point life at that in time. upon disorder, Based his of a diagnosis bipolar rather than major depression, Muha diagnosed, as Dr. Dr. Siebert decided particular that Mrs. Baer needed to take a type of psychotrop- ic a stabilizer.” medication known as “mood These mood stabilizing said, appropriate, medications were he because she bipolar, was medications “will especially these lock onto a keep normal and will them they are in a mood
person when that these medications should He recommended functional.” He ac- antidepressant an medication. along taken zoloft, already taking antidepres- knowledged that she was a stronger dose zoloft or sant, higher a but believed that also that Dr. said appropriate. was Siebert antidepressant taking a while these by psychiatrist be monitored she should family physician was practice and that care medications not sufficient. with the nature extent problems several perceive
We First, testimony. Dr. Siebert’s court’s reliance on the trial Dr. ruling its Siebert’s recommendation court rested entire diagnosis. treatment, major of his rejecting part while say agreed it Mrs. the court whether Although did Dr. implicitly rejected Siebert’s bipolar, Baer *15 remission, Mrs. was in suffered currently that Baer opinions no on her had current limitations depression, no current and Instead, had ability. the court found that she “severe working working her from more prevented presently which depression” Although court chose not to hours a the than ten week. condition, it of current Dr. Siebert’s assessment accept that Mrs. adopted Dr. Siebert’s recommendation nonetheless be mood stabilizers. taking Baer should bipolar that disor- testimony from Dr. Siebert’s appeared It are major depression symptoms, exhibit similar der and Dr. to from one another.4 Siebert distinguish often difficult testimony appears general to be in accordance with understand 4. Such Comment, Guiduli, Challenges ing See Karin A. about these conditions. Safety” Mentally to Standard and the Ill: The "Threat the Defense for Psychotropic Under Title I the Americans with Medication Use of of (1990). U. Pa. The Act L.Rev. Disabilities of explains: Comment major (unipolar) depression, diagnoses include manic- Four common disorder, (bipolar)' dysthymia, depressive and seasonal affective disor- Bipolar differs from other three that der. ... disorder experiences episodes (‘highs’) depres- to manic in addition individual mood, (‘lows’). depression is a bad these Just as more than sion good episodes simply a or a break in the not mood manic are Rather, may euphoric depression. is a state which lead the mania thoughts, grandiose experience of no- individual to rushes ideas or type also indicated that the of appropriate medication each of category different, affective disorder was and that mood be if diagnosis major stabilizers would not used simply depression, bipolar rather than By predicating disorder.5 its of denial further on Mrs. Baer’s to refusal take the recommended, mood stabilizers that Dr. Siebert the court placed total accuracy diagnosis reliance his correctness his When recommendation. we consider the recommended, intrusive nature of the medication and the rejection court’s a major portion of Dr. testimony, Siebert’s factor in person’s right bodily think integrity, we that respect. erred this practical Consideration of the results the court’s decision Mrs. upon light Baer sheds on additional problems basing court’s its decision Dr. Siebert’s recommendations. Dr. Siebert was not Mrs. treating physician. Baer’s He was engaged by Mr. Baer to give testimony expert as an witness support against any his defense in alimony. increase Dr. Siebert made it testimony clear his seeing he “was not for purposes of recommending treatment.” If Mrs. Baer were to meet attempt imposed by the trial conditions court, she might go psychiatrist to a who diagnose would not bipolar, her as and therefore would recommend mood stabilizers. If her psychiatrist were to only recommend anti- them, depressants, taking and after she was still limited in her work, ability to the issue res might judicata modification because she seeking would still be extension of alimony based *16 tions, distractibility, energy, risk-taking, extreme abundant increased rapid talking fidgeting, tendency irrationally or and a to act and to painful consequences overlook harmful or of behavior. (Citations omitted). disorders,
Id. For clinical of definitions these see Psychiatric Diagnostic American Ass’n and Statistical Manual Mental of th (DSM-IV) (4 ed.1994). Disorders Guiduli, ("For supra, 5. See at 1160-61 the most common mental illnesses, psychotropic categories: medication be divided can into four (to disorders), antidepressants (to depressive treat antimanics treat disorder), bipolar manic-depressive antianxiety disorder or medication (to disorders) (to anxiety treat antipsychotics schizophre- and treat nia).”)
488 work, inability taking to without mood depression
on her and no in circum- stabilizers, change thus could show and she Blaine, 704, 191. Md.App. at 632 A.2d 97 stances. See lithium, Baer a previously note that Mrs. took We further stabilizer, While her testi- problems. and experienced mood not, proper she a not establish that could with mony did stabilizer, a mood we dosage, successfully medicated with be should be past history the medication think that her claim a modifica- the conditions her evaluated before taking on her such medications. alimony tion of Timing problem a for Mrs. Baer. Under significant is also order, of only would have to the end the the court’s Mrs. Baer medications, a take new psychiatrist, 2000 to obtain new year adjustment dosages, of the allow time for medications to medications allow her function determine whether the new of forty-hour At the time the enough well to work a week. $1,796 month, $1,500 in per including hearing, her income was 2000, year she will lose this alimony. At end of that alimony, coverage well as health insurance Mr. as again, hearing if she provides. petitions Baer now Even case after end of set the new until well may time, may no for a ability pay 2000. that she have year By medications, or and thus be unable psychiatrist psychotropic fulfill the court. imposed the condition Major bipolar are illnesses that depression and disorder Karin limit a See A. significantly person’s employability. Guiduli, Comment, Challenge Mentally For The Ill: The Psycho The “Threat Standard and Use Safety” of Defense Title Under I the Americans With tropic Medication of . 1990, 1149, Act 144 U. Pa L.Rev. 1155-56 Disabilities (1990). recognized by have been courts as These illnesses alimony or modification of grounds for either indefinite 101, Brashier, A.2d 44 80 at 560 alimony. Md.App. See light (affirming grant trial court’s indefinite Mar disability); In the Matter psychiatric continued Cook, P.2d riage Or.App. Cook (1976) resulting in depression severe (holding spouse’s
489 loss of income supported modification of spousal support); Glover, Glover v. (Ala.Civ.App.1998) So.2d 220-21 (evidence disorder, of spouse’s depression by chemical caused resulting fatigue, in was sufficient for modification of alimony); ll-106(b)(8) (mental § see also FL condition of is party one of award). required considerations in determining alimony Em ployability, timing, and the cost of mental health care are all factors that contribute to our conclusion that trial court ruling. erred its
Appellee argues that the sole fact that Mrs. Baer’s decision
not to take psychotropic
by
medications was influenced
depression is a
preclude
sufficient reason to
the trial court’s
taking into account her refusal in denying alimony. We do not
go this far.
It is well recognized that mental illnesses can be
medications,
controlled
of psychotropic
use
and we
think a court
not ignore
potential
need
from such
benefits
person
medications. While a
has a
right
determine what
take,
can,
medications to
particularized
expert
testimony
a critical
review of such testimony, hold a
competent adult accountable for
consequences
of such
DeMary,
1110;
Franklin,
decision. See
982 F.Supp. at
cf.
1218-19;
F.Supp.
DeLaMatter,
at
We realize that the present circumstances of the case are unusually resolve, difficult for a trial court to and the distinc- tions that we have drawn are fine ones. To clarify the decision, ramifications our provide we the following di- rections suggestions for the trial court on remand.
(1) Given its finding that Mrs. Baer could not presently week, work per more than ten hours and its concern refusal psychotropic unreasonable, to take medications was the court should not enter a judgment final the case based judgment on It should reserve its present evidence. issue, that it is parties advise
the indefinite *18 alimony of considering grounds denial of on the indefinite should, however, to take medication. It appropriate refusal pendente lite a make an interim determination whether warranted, Mrs. is based on Baer’s alimony modification limitations, current mental health and resulting taking work 11-106 the factors under section appropriate into account Family Law Article. the
(2) remand, to the give the court should consideration On expert of a as a witness appointment psychiatrist neutral to Maryland thorough to Rule 5-706 conduct pursuant to history, testify of Mrs. her medical evaluation Baer and expert’s findings the and medical recommendations. regarding consult give also both sufficient time to parties It could medications, stabilizing use of mood psychiatrist regarding the expert allow to witnesses present and then them issue.6 specific
III. Surgeries Denial of Modification on Grounds of Cancer appropri- of our that the court light directive determine inability Baer’s to work alimony considering ate Mrs. current week, not per no more than ten hours we need consider refusing in an whether erred extension of unexpected surgeries. alimony ground of her cancer reason be An for that also would based extension work, ability on her current and involve consideration factors, 11-106 of Law Article. Family same under section Thus, consideration of this alternative reason extension repetitive analysis. would be a VACATED; OF THE CIRCUIT COURT
JUDGMENT REMANDED FOR FURTHER PROCEEDINGS CASE opportunity expert given appropriate 6. Mr. Baer's should be interview and Mrs. Baer. evaluate OPINION; CONSISTENT WITH THIS BE COSTS TO PAID BY APPELLEE. HARRELL,
Concurring Opinion by J.
HARRELL, Judge, concurring. (not but) I separately write for the I practice because do necessity see the for much of the dicta in majority opinion, where, particularly portions view, those in my majority promotes consequence as a of the circuit court’s ruling that may required Mrs. Baer to experiment psychotropic drugs satisfy order to the court whether she is entitled I alimony.7 modification of also fail to see the need to include legal analysis the forced medication majority set forth opinion appeal. Nevertheless, order to decide this because *19 of the majority’s identified inconsistencies between the circuit court’s in reasoning July its 13 1998 Opinion And Order and evidence, I the endorse the I explain. ultimate result. embodying The order the previously agreed terms of upon award, the rehabilitative alimony which appellant sought extend, or 1 modify was dated April 1996. The record extract
provided by parties the in this appeal does not any include background real as to what was before 1 April the court on 1996 regard to appellant’s psychiatric or emotional condi- tion history8, or although we do know surger- that her cancer that, 7. It seems to experimenting me in lieu of drugs with the in an court, satisfy effort to Mrs. produce competent Baer could seek to expert testimony to opinions counter Dr. Siebert’s conclusions and in Muha, regard. Obviously, psychologist, Dr. a clinical was not such Moreover, qualified expert a witness. could flesh-out Mrs. Baer’s anecdotal prior references to her adverse reactions to medication and perhaps interpret idiosyncratic those results in terms of the known properties drugs, including drugs of newer by discussed Dr. Siebert. copy 8. A is included in the record extract of the 13 November 1995 proceeding open parties’ agreement court where the put was counsel, Appellant’s record. inquiring appellant former as to her understanding year of the 5 alimony compo- modifiable rehabilitative nent, single question framed a your include “should condition worsen, increase, you would be you [ ] free to come back and ask for an allusion, understand vague that?” Other than this the extract in the 492 entry of the before from them occurred recuperation
ies and what the court’s Thus, not know we do order. foundational or treat the future course regarding any, if was anticipation, 1 1996. April after mental illness of Mrs. Baer’s ment us, however, deficiency is this instant case reaches posture unchallenged con consequence because dispositive not of And July Opinion 13 1998 judge his of the trial clusion medical of [appellant’s] the continuation “that Order qualify for an extension would major depression condition 93, 560 A.2d v. Brashier Md.App. under Brashier [80 alimony (1989) 44 ].” and Benkin from Brashier apart instant case sets the
What
course,
(1987),
is
Benkin,
What in Brashier judiee sub from that obtained the instant case *20 Benkin, however, by case in the instant was foreclosed conclusions based and inconsistent unsupported court’s trial which it felt credible or it found apparently the evidence on out, judge trial majority points constrained. As disorder, diagnosis bipolar of Dr. Siebert’s rejected apparently depression. of severe Dr. Muha’s identification in favor of appreciated may have light what the court appeal casts no instant at that time. Mrs. Baer’s "condition” about treatment, respond favorably to however. agoraphobia Her did 9. Yet, drug of Dr. ignoring implicit limitations Siebert’s testimony treatment stabilizers regarding combining mood dosages bipolar to appropriate antidepressants treat disorder, apparently thereby the court felt constrained and/or stabilizers was persuaded appellant’s that refusal to take mood types dosages and certain or contributed to antidepressants continuing depression.10 me, however, greatest was court’s consequence Of conclusion that appellant’s “depression is one the reasons rejects drugs.” Giving play she these full to the trial court’s superior ability credibility assess witness and the court’s matters, broad discretion in I interpret these this statement as the court that concluding appellant’s mental disease or condi- proximate tion was a cause of her refusal to seek appropriate so, Assuming treatment. that her condition then was treatment, inseparable from her refusal to seek and the iso- lation of the latter would not be an or appropriate therefore logical ground for denial of request. modification As the trial court explains judgment, its it cannot stand. Therefore, result, I join in the majority’s but based on a bit analysis. leaner add,
I in closing, that the acceptance personal responsibil- ity for the consequences voluntary of one’s and free conduct (which I principle perceive as undergirding the trial court’s case), reasoning this is a value generally resonances I with me. What am unable to reconcile in application principle however, this in the appeal, instant is that the court apparently concluded that Mrs. Baer is sick and that her sickness feeds on itself to impede possible her maximum improvement. circumstances, Under such appellant’s decision particular to refuse a regimen treatment cannot be deemed to be a voluntary free and decision. zoloft, Appellant taking
10. antidepressant, which Dr. Siebert event, thought dosage. any was at too low Dr. Siebert believed only antidepressants a combination of and mood stabilizers would treat adequately appellant’s bipolar disorder.