*2 sure the home’s mortgagees resulting HAYES, and WIL- Before REYNOLDS mortgage pay- from Dr. Inman’s default on HOIT, JJ. ments, the house has been lost. The circuit HAYES, knowing that Judge. foreclosure imminent, event, in provided that marriage of John and Inman Sue $60,000 Inman was to Mrs. Inman over years after seventeen was dissolved years.) the next ten During the course of the three children. marriage possess principal question arising appeal Inmans had come to vehicles, is whether the court improperly home and several trial acted expensive heavily giving prop- encumbered in most of the benefits of these items were so Sue zero, give i. couple’s erty ownership, possession, giving net worth was e. while burdens, a few hundred dollars. John Inman John most of the concomitant i. e. or take dentist; for responsibility is a teacher. Mrs. most of the indebtedness. throughout most of the steadily has worked Since distribution was based begun dental in marriage. John had not classification of Dr. Inman’s practice dentistry prop- time of the Both license to as marital school at the financially erty, necessary contributed to it is first to consider the John and Sue John of that ability go propriety finding. John’s to dental school. As the briefs indicate, be- steadily impression worked as a dentist since this is an issue of first so, Kentucky overwhelming at in and there no coming licensed to do first is among jurisdictions. Certainly private prac- in recent trend other Army, and dissolution, practice profession Dr. Inman license to a lacks Prior to the a tice. is specialty learn the of ortho- attributes of most sorts of begun had —it not, dontics, reasonably expected example, any way transferrable. and may major difficulty treating Im- with a in that direction. The other expand practice pacity years prior “property” license professional degree the other’s extremely quan- its value is difficult addition Further, to considerable which is in placed value sub- tify. once dollar part the profes- stantial fruit the increased earn- permission practice on official ing capacity. Such a division of sion, very still faced with the awarding could amount an interest portion far deciding job difficult *3 any to proportion appor- out of reasonable owing is the other capability which to degree. of tionment interest in spouse’s efforts. exposition of leading The clearest the two about strong This court has reservations thought schools of on whether sufficient catego- license in the professional a placing “property” of can indicia be attributed to only property. Doing so can ry of marital degree partitiona- an it educational make in al- battle create another field for ble under the Uniform Dissolution of Mar- complex delicate area of division ready riage be in may Act found the recent Colo- spite these reser- property. In of of marital case, Graham, Colo., Marriage rado In re of vations, however, are we feel that there (1978), by 574 P.2d heard the state Su- treating profes- a instances in which certain preme en banc. only is property marital sional license as equita- in a achieve an way which court can Graham, In had the wife contributed 70% ble result. family income, of in addition to most of work, the household while her husband ac- pro- sort of flatly any To refuse to find quired degree. was an MBA There no accu- work the property interest would tected (under property mulated the conventional in certain instances. grossest inequity rate). of at property any definition How- in situation rather common ever, expert testimony the trial heard puts the other spouse one which degree that upon conferred Mr. Graham school, followed professional or graduate earning an increase in his in capacity excess upon completion closely a dissolution by $80,000. of perhaps the clearest schooling, allows of In problems of involved. exposition opinion, majority Justice Lee’s concurred usually is the case instances it those in three justices, other held that an been accu- property or has little no marital degree property in that: educational is is gener- there In such instances mulated. exchange it does not have an value on each no maintenance as ally entitlement open an It to the personal market. spouse self-supporting. Thus spouse is It holder. terminates the death of product much of the has devoted who and is not inheritable. It holder cannot labor to an “investment” several sold, transferred, assigned, conveyed, be from family prosperity is barred future pledged. degree or An advanced The other his or her investment. return on product many years pre- cumulative of contribu- windfall spouse has received education, diligence vious combined with earning capaci- or increased to his tion may and hard work. It not be support, he spouse’s had Had he not ty. expenditure money. mere prolong compelled been might well have an intellectual achievement simply while his education delay or acqui- may potentially assist the future enough himself and earning view, it sition our costs, go deeply into meet education none of the attributes of debt. usual sense that term. hand, dissent, different considera- Carrigan’s the other Justice which two
On a sizeable marital apply justices joined, argues powerfully when other tions husband’s, long earning power, up built over the course that the increased estate is be instances, might represented by degree, should indeed be such there is spouse who con- counted as marital where to a inequitable to award property and the earning ca- no accumulated marital spouse’s other to the tributed might instance in- proper in a ineligi- who subsidized spouse tangible there is more mari- clude whether Carrigan ar- Justice for maintenance. ble “ work eq- whose division would tal that, . demands equity . . gues there extent to which uity, and the remedies to extraordinary courts seek Spouse A’s reciprocal aid. He notes extraordinary injustice.” prevent capacity might par- B’s spouse or if if there had been if B totally extinguished tially or for mainte- eligible had been Anne Graham helped put the favor and had returned non-self-supporting, nance, been i. e. had position having a salea- A in the problem in would have been no that there factor to con- important Another ble skill. solution. achieving equitable the extent to which the sider however, stood, Anne Graham As matters already or otherwise nonlicenseholder has away empty-handed from walk would from his or her financially benefited substantial marriage to which she had made *4 earning eligible or is for spouse’s capacity, would Her former husband contributions. guidelines These are meant maintenance. earning ca greatly increased leave with a illustrative, not exhaustive. to her ef in substantial pacity, due maintains that appellant forts. improper appel- event it is to allocate to the ability to its reliance In addition lee both an interest in his earn- extraordinary equity courts of to fashion ing practice, interest in his capacity and an solutions, notes that the Graham dissent repayment allocation is double in that such earning capacity proper- as classification of obligation. We would be in- for the same contexts, not, so in other considered ty is agree, except clined to that some evidence notes that one who tortious- farfetched. and suggests that the establishment build- earning another’s ca- ly destroys or reduces practice might to some ing of Dr. Inman’s compensation monetary make pacity must degree be the result of team effort over and Anne capacity, loss of that had for that expended effort in the ac- above the team tortious act by been widowed Graham degree. of his We ask the circuit quisition enti- party, she would have been of a third remand, specific findings to make compensation based on her hus- tled to as to whether and to what extent Sue In- earning capacity. future projected band’s prac- man has an interest in John Inman’s further add that the United We would tice, distinguished from increased earn- as difficulty in Supreme Court had no States ing capacity by conferred his license to pur- Amendment finding, for Fourteenth practice dentistry. personal in such poses, property interest While we think it reasonable and fed- terms as tenured and nontransferrable necessary sometimes for courts to have the 416 Kennedy, Arnett v. employment, eral property interest for the power to find (1974), 134, 1633, L.Ed. 15 94 40 U.S. S.Ct. professional degree, holder’s in a we government and, degree, to to a limited ap strict limitations on place very wish to 254, Kelly, 397 90 Goldberg v. U.S. largesse, property pursuant to such portionment (1970) 1011, n.8. 25 L.Ed.2d S.Ct. cases, findings. In most we feel that sug- not to these last cases We mention such a spouse’s best measure of a interest in test for whether a constitutional gest that her by should be measured his or applicable, is here item is degree, in the but not monetary investment court, in defin- that a only to demonstrate recovery quasi-contract equivalent (marital) “proper- statutory concept, ing the prevent unjust enrichment. company when it distinguished ty,” is in spent support direct Thus the amount for defini- hamstrung by narrow refuses to be expenses during period and school “property.” tions of education, and ad- plus reasonable interest inflation, determining justments appor- for for should be Proper guidelines provided support classification is tioned to the who whether a when, Inmans’, requires case there is statute conditions- as no marital little or (l)(a) (l)(b), and of both subsections earning pro- capacity the increased met in for order an award mainte- supported spouse’s degree vided appropriate. nance to be the instant training. case, the circumstances described in subsec- case to the Meade Thus we remand this (l)(b) clearly tion do not exist. Thus the findings as to Inman’s Sue Circuit Court Dr. order the trial court that Inman prac- John’s license to a month in maintenance must be va- $100 dentistry, monetary tice measured cated. earning capacity to his contribution dentist, present for calculation summation, affirm princi we her interest. value of allowance of ple Meade Circuit Court’s with issue of We are also faced professional degree (or the increased proper to award to Sue whether it was represents) capacity as mari per maintenance. month $100 However, we find tal steadily although rela-
Mrs. Inman
findings
not made sufficient
paid
with
tively modestly
worker
division it has
fact
in an
secure
years experience
made. We thus
the trial court to
direct
job.
find; a)
dollar
approximate
value
from the evidence
While it is
clear
Inman’s contribution to
Inman’s
*5
earning capaci-
she could not raise hear
that
acquisition
practice dentistry,
of a license to
somewhat,
that
a teacher
ty
it
clear
as
b)
approximate
the
value Dr. In-
dollar
of
a com-
bring her income above
she cannot
c)
earning capacity,
ap
man’s increased
the
range.
paratively modest
value,
any, of
In-
proximate dollar
if
Mrs.
her the
court has awarded
lower
man’s contribution to
worth of Dr. In-
the
marital assets and
of
benefits
practice.
man’s
fi-
has
most of the concomitant
allocated
above,
As noted
the reason that
the
nancial
to Dr. Inman.
burdens
courts are forced to
with the
deal
difficult
placed on
court has also
The lower
arising from
case is that the
problems
this
support obligation
substantial child
Inman a
Inmans,
though they
even
have had two
financial
relieve much
the
which will
incomes,
steady
including Dr. Inman’s well-
Mrs.
fall on
would otherwise
burden which
income, were,
above-average
at the time of
couple’s
the
three
custodian of
as
dissolution,
they
so
in debt that
deeply
their
circumstances,
view these
children.
had a net worth
close to zero. The
payment
periodic
maintenance
an award
show,
suggests,
clearly
record
but does not
403.200
improper.
KRS
to Mrs. Inman
couple’s
indebtedness resulted en-
provides:
that
tirely
of mar-
from a combination of Dr. Inman’s
for dissolution
proceeding
.
.
.
riage
legal separation
poor management
his own business and
order for
grant maintenance
some disastrous investments.
that
if it finds
spouse only
either
Mrs.
degree
participation
Inman’s
seeking maintenance:
spouse
ap-
of these unfortunate ventures
including
(a)
property,
sufficient
Lacks
limited,
be
pears from the record to
him, to
apportioned
marital
If
issue is not made clear. Mrs. Inman
needs; and
provide reasonable
willing participant
fact a
through
himself
(b)
support
unable
Is
debts, it is
acquisition of these
unreasonable
or is custodian
employment
appropriate
she
be allowed to have
benefit
circum-
condition and
of a child whose
during
possessions
all of the
accumulated
cus-
that the
appropriate
stances make
former
marriage
while her
husband
employ-
to seek
required
todian not
must continue to bear all of
burdens.
ment
home.
outside
practice
profession
ca-
that a license
professional
If John Inman’s
asset,
clearly
conceptual
marital
Aside from
pacity is a marital
it is
offset
difficulties,
extent
the net indebtedness of
the introduction of such a no-
to some
marriage.
apt
unreasonable to
tion into our law is
to cause at least as
would be
Inman,
salary, many problems
with her limited
as it would solve.
expect Sue
repayment of debts which she
to undertake
specifically provides
403.190
KRS
never would or could have assumed
shall be divided “without
earnings
equal-
It is
strength of her
alone.
regard
misconduct,”
to marital
while such
ly
totally
unreasonable to allow her to
es-
apply
stricture does not
to maintenance.
played
cape
impact
of these debts if she
Consider a
helps
situation which a
acquisition.
in their
We
a substantial
put
through profes-
a husband or wife
remand, would ask the trial
on
graduation
sional school but sometime after
account, and if neces-
take this matter into
and before substantial marital
Mrs. In-
sary to take more evidence as to
young profession-
been
deserts the
to,
and contractual
man’s
assent
professional
al for an older and wealthier
for,
during
debts contracted
liability
person.
inequitable
A most
result
in,
reached
this
allowing
spouse to share
during appel-
As noted
we learned
as marital
license
chil-
argument
late oral
and the
partner.
of the deserted
the marital domicile
dren have lost
In Casper Casper, Ky.,
v.
er factors relevant to the determination of REYNOLDS, J., concurs. considered, the amount of maintenance are equitable an result can be reached here. J., WILHOIT, dissents. recognize I that for various reasons it WILHOIT, Judge, dissenting. always possible to use mainte- dissent from so much of the respectfully I nance equitable to reach an result di- majority opinion as holds that Dr. Inman’s proceedings. vorce Perhaps problem this practice dentistry license to should be treat- should be addressed by Legislature. Mrs. ed as marital and as denies property concept The marital simply does thoughtful very Inman maintenance. The not fit. majority persuasive, aimed
opinion of the reaching equitable an result in a
as it is at Nevertheless, factual situation.
perplexing me that case it seems to this reached equitable result can better be rather
through an award of maintenance proposition to the tenuous
than resort