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10/15/91 DOUGLASS CARMICHAEL v. FREDRICA CARMICHAEL

October 15, 1991

DOUGLASS CARMICHAEL, APPELLANT
v.
FREDRICA CARMICHAEL, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Curtis E. Von Kann, Trial Judge.

Rogers, Chief Judge, and Terry and Wagner, Associate Judges.

The opinion of the court was delivered by: Rogers

In this appeal from a judgment of divorce and medical malpractice, appellant Douglass Carmichael contends that the trial Judge erred in finding that appellant's malpractice caused harm to appellee Fredrica Carmichael, and that the Judge abused his discretion in distributing the marital property. We agree that the evidence of causation was insufficient to support a finding of malpractice. Accordingly, we reverse the judgment for appellee on the malpractice claim; otherwise we affirm.

I.

The trial Judge, sitting as trier-of-fact, found that in January 1982, appellee Fredrica Carmichael (then Fredrica Saunders) first scheduled an appointment to see appellant Douglass Carmichael, a licensed psychologist. She sought his professional assistance in connection with personal problems stemming from her "excessive preoccupation" with her son, who was away at college. Appellee was referred to appellant by Richard Saunders, then her husband, who had been a patient of appellant several years earlier. At the Conclusion of her first visit, appellant said, "did it ever occur to you that you're not here about [your son] at all but about yourself?" Appellee agreed to regular meetings twice a week. *fn1

After a course of treatment for approximately three months, appellant informed appellee that on April 6, 1982, her marriage with Richard was flawed, and that she should consider separating from him. Prior to this, although she was not completely happy in her marriage, appellee had never considered leaving Richard. That evening, after arguing with her husband, appellee became very upset and ran out in the street dressed only in a leotard.

Appellee walked to appellant's nearby house, saw lights on, and rang the bell. Appellant answered, and took her upstairs to his office, where she had met him for all of her previous therapy sessions. After appellee explained what had happened with Richard, appellant led her across the hallway into his bedroom, comforted her, and put her in bed. He then had sexual relations with her, which she did not resist.

The next morning appellee was very distraught. Appellant told her that he loved her and wanted to marry her. When appellee said that she was married to Richard Saunders, appellant explained that Richard did not really love her and that she should divorce him. On appellant's advice, appellee went home and told Richard that she could stay married to him only if he would be willing to adopt a child. Richard responded that an ultimatum was not a good basis for a marriage, and walked out.

Appellee went to see appellant for her next regular therapy session, and appellant informed her that she should quickly work out a divorce settlement with Richard. Although appellee was not sure if she loved appellant at this point, he seemed to understand her and know things about her that she did not know herself. She followed his advice, and promptly arranged to divorce Saunders. *fn2

Appellant and appellee resumed sexual relations after appellee's separation from Richard became final on April 16, 1982. They also continued to meet for therapy, increasing to three times per week. By late April, appellee and appellant had decided to marry. Her family disapproved and insisted on an antenuptial agreement to protect appellee's assets. Appellant agreed to sign the pre-nuptial agreement, drafted by appellee's attorney, which specified that all jointly titled property would be subject to equitable distribution in the event of divorce.

Although at first appellee was happy in her new marriage, her mental and physical condition gradually worsened. Her friends and family noticed that she became gaunt, emaciated and pale. She was depressed, and spoke of herself pejoratively, saying that appellant was "far too brilliant for her," although she herself had a doctorate in English literature. By early 1986, appellant concluded that their therapy was not going well, as appellee's depression deepened, and he referred appellee to Ms. Evelyn Nef, another therapist. Appellant consulted with Ms. Nef about appellee as a "co-therapist." Despite her new therapy, however, appellee's depression worsened in 1987 and 1988, culminating in suicidal feelings. *fn3

There also was evidence that appellee had an unhappy childhood resulting largely from her father's indifference, if not hostility, and her mother's efforts to keep hidden from her husband, appellee's father, the fact that appellee was hard of hearing. Further, Ms. Nef testified that appellee had a strained relationship with her parents after she became an adult, feeling alienated from them, and lived a life that was separate from them and different as well in style, appellee choosing a life in academia and a standard of living inconsistent with her wealth. Appellee's first marriage, according to Ms. Nef's testimony, had enabled appellee to get away from her father's abuse, and resulted in divorce after fifteen years. Her second marriage, to Richard Saunders, in which there was very little feeling, according to Ms. Nef, ended after fourteen years. She separated from appellant after five years, and (according to Ms. Nef) appellee was discharging some of her anger against her father onto appellant. Ms. Nef further testified that appellee's conduct toward appellant, always trying to please him, is typical of someone who has been abused earlier in life. Appellee also suffered some distress when her mother died in 1986, but the Judge credited appellee's testimony that "she made her peace with that matter and it held no continuing terror for her, as did her relationship with ."

The Judge found that in April 1987 appellant wanted to invest some of appellee's inheritance money with Ralph Lowenberg, an investment counselor. Appellee had resisted, because she did not like Lowenberg. Appellant kept pressing her nonetheless, and she (for the first time) "began to feel that was coercing her about financial matters." *fn4 In the spring of 1988, appellee discovered that appellant had arranged -- again against appellee's express wishes -- to purchase with appellee's funds a condominium for appellant's son by a previous marriage. Appellee became quite angry, and moved out of the house. They separated shortly thereafter.

Appellant filed for divorce on October 10, 1988, and appellee counterclaimed for annulment and medical malpractice. By agreement of the parties, the divorce and malpractice claims were tried jointly before the trial Judge. At trial, appellee introduced expert testimony in addition to lay testimony regarding the nature of the malpractice and resulting injury. Appellant countered with his expert and lay witnesses. Following the trial, the Judge granted the divorce, distributing virtually all of the ...


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