Baer v. Baer

• Decision Date: 07 October 1999
• Docket Number: No. 1730,1730
• Parties: Laudie J. BAER v. Marvin L. BAER.
• Court: Court of Special Appeals of Maryland

738 A.2d 923

128 Md. App. 469

Laudie J. BAER v. Marvin L. BAER.

No. 1730, Sept. Term, 1998.

Court of Special Appeals of Maryland.

October 7, 1999.

William M. Ferris (Krause & Ferris on the brief), Annapolis, for appellant.

Gerald C. Ruter, Baltimore, for appellee.

Argued before HARRELL,¹ HOLLANDER and ADKINS, JJ.

ADKINS, Judge.

On August 8, 1994, Marvin L. Baer, appellee, filed a complaint for an absolute divorce from Laudie J. Baer, appellant, in the Circuit Court for Anne Arundel County, based upon a voluntary separation. On January 25, 1996, the court approved a marital separation agreement entered into by the parties, calling for, inter alia, modifiable rehabilitative alimony. Mrs. Baer was granted an absolute divorce on April 1, 1996, which incorporated the previous agreement. Mrs. Baer subsequently filed a series of motions, including a motion to modify the aforementioned alimony. After a hearing on the motions, the trial court denied appellant's request for modification of alimony. This appeal was timely filed.

Mrs. Baer asks us to consider whether the trial court abused its discretion in denying a modification of alimony: 1) on the basis that she would not undergo treatment with the recommended type of psychotropic medications for her depression that prevented her from full-time employment; and 2) by not considering her unexpected surgeries for colon cancer and the associated incapacity and recovery period.

FACTS AND LEGAL PROCEEDINGS

The parties were married in 1983, when Mrs. Baer was 43 years of age and Mr. Baer was 49 years of age. No children were born as a result of their marriage. In July 1993, the parties voluntarily separated, and on August 8, 1994, Mr. Baer filed for a divorce. On November 13, 1995, at a scheduled hearing date, the parties announced that they had reached an agreement covering property and support issues, which they read into the record. At that time, they agreed that neither party would proceed to obtain a divorce until after January 1, 1996.

On January 23, 1996, the trial court signed an order incorporating all of the terms of the parties' agreement according to the terms announced at the November hearing. This order included provisions for payment of "modifiable rehabilitative alimony" to Mrs. Baer for five years from January 1, 1996. The alimony was to be paid at a rate to be determined by a formula, not to exceed $4,000 per month, until the parties' marital home was sold. The formula called for payment of the two mortgages on the parties' marital home, the utilities, and $430 per month in cash to Mrs. Baer. After the house was sold, Mr. Baer would pay alimony of $2,500 per month through 1998, and thereafter at the rate of $1,500 per month until the end of the year 2000. Mrs. Baer also received a $36,777 distribution from Mr. Baer's University of Maryland pension, and a small portion of his military pension, to be paid monthly. Mr. Baer agreed to pay Mrs. Baer's health insurance through the end of the year 2000, assumed marital debts of $48,000, and paid $4,500 in counsel fees for Mrs. Baer.

Mrs. Baer opposed the entry of the January 1996 order, asserting in a January 25, 1996 letter to the court that the November 1996 agreement was not equitable, and that she did not "understand and appreciate what she was agreeing to." The court nevertheless signed the order incorporating the agreed terms and included a handwritten note that stated: "Since the order comports with the transcript, it has been signed." A judgment for absolute divorce was entered on April 1, 1996, incorporating the terms of the January 23 order. No appeal was taken from this judgment.

Beginning in March 1997, after the marital home had been sold,² Mrs. Baer filed a series of motions regarding the alimony called for in the January 1996 order, including requests to: 1) increase and extend the rehabilitative alimony because of her ongoing recovery from colon cancer; and 2) to award indefinite alimony because even after recovery from the surgeries, she could not "attain a standard of living which is not unconscionably disparate with that of" Mr. Baer. Mrs. Baer's motions were heard on June 10 and 11, 1998, in the circuit court.

Factual Background

Mr. Baer is a board certified prosthodontist. After retiring from the dental corps of the United States Air Force, he served as an Associate Professor at the University of Maryland Dental School and maintained a part-time dental practice. At the time of the hearing in this case, Mr. Baer was earning a gross annual salary of $81,628 from the University, plus $55,668 in retirement pay from the Air Force. For the year 1997, he also earned an additional $20,368 from his part-time "faculty practice" of dentistry. After 1997, income from his part-time dental practice decreased because he cut back his working hours.

Mrs. Baer holds a doctorate in research chemistry, and when the parties were married, she was employed as a research chemist at the Naval Research Laboratory. She was terminated from that position in 1983, for failure to complete an assignment. Since then, she was employed, sporadically, as a ski instructor, a yoga instructor, and a lifeguard. At the time of the hearing, she was working one or two days as a massage therapist at the University of Maryland Health Center, earning $34 per hour. Her pay depended upon the number of patients she treated daily. Her monthly income in the spring of 1998 was estimated to be $170 from her employment, $126 from Mr. Baer's Air Force retirement, and $1,500 in alimony.

In February 1995, Mrs. Baer was diagnosed with colon cancer. Although several of the physicians she consulted regarding her cancer recommended surgery, she declined surgery, believing that she could overcome the cancer with homeopathic medications and proper diet. In July 1997, her cancer caused her colon to rupture, and she underwent emergency surgery to remove the cancer and part of her colon. As a result of that episode, she was unable to work from July 1997 through September 1997. In October and November 1997, she worked as a message therapist, but only one day a week, that being all she "could handle."

In December 1997, she required additional surgery, a reverse colostomy, and as a result, was unable to work for two months. In March 1998, she resumed her position as a message therapist on the two days per week schedule she maintained at the time of the hearing. She testified that in June 1997, her recent surgery 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 to her pelvic area, and she was undergoing acupuncture treatments for the latter condition.

Mrs. Baer has a history of mental health problems, dating from her teenage years. She attempted suicide once as a teenager and twice while an adult attending graduate school. As an adult, she was hospitalized three times for depression, and was under the care of a psychiatrist for various periods during her life. During the five years preceding the hearing below, she was not under a psychiatrist's care.

She began consultations with a psychologist, Dr. Thomas Muha, on January 8, 1997. Dr. Muha opined that she suffers from "severe recurring depression with psychotic features." He described her psychotic features as an episodic difficulty "being able to assess the reality of situations that she is facing and that significantly impairs her judgment," and gave as an example her refusal to undergo surgery to remove the cancer in her colon despite the recommendation of multiple doctors. He also testified that her depression causes her to have a low energy level, and "her tolerance for stress is absolutely minimal." Dr. Muha opined that with appellant's stress level and chronic fatigue, she was limited in the extent that she could work, and "one or two days [per week] would probably be the optimal level at which she can function." Dr. Muha also opined that the prognosis for recovery is "not good," and that "there's an 80 percent probability that she's going to continue to have severe problems."

Dr. Muha indicated that there are medications that would be appropriate for the depression suffered by Mrs. Baer, but declined to express an opinion regarding the identity of those medications, saying: "I am not a medical doctor, so I am not qualified to answer that...." He reported, however, that "I certainly suggested, recommended, referred, and encouraged her to speak to her physicians about that. She did, in fact, at my urging, do that." It was his opinion that even if she used additional medications, she would be unlikely to stay on the proper dosage, and so would experience problems.

Dr. Stephen Siebert, a psychiatrist, testified for Mr. Baer regarding Mrs. Baer's mental health. He reviewed her medical history, and had a two-hour meeting with her to determine her current state of mind and current level of functioning. His conclusion was that, although she exhibited no current symptoms during their meeting, her records presented evidence of a bipolar disorder. He explained bipolar disorder. He differentiated his diagnosis from that of Dr. Muha by explaining:

If a person has a manic episode at any time in their life, it would be most appropriately — result in a diagnosis of a bipolar disorder, not a recurrent depressive disorder as Dr. Muha has offered... this condition is a very readily treatable condition.... This is one of the few conditions ... in all of psychiatry where we can actually prevent the symptoms of the illness.

We can prevent hospitalizations. We can prevent the psychosis. We can prevent the depressive episodes. We can prevent manic episodes. There are treatments that will maintain mood stability, allow a person to cope with the normal stresses of life, and allow people to function in a normal way.

Dr. Siebert opined that a relatively new class of medications...