346 N.W.2d 595 | Mich. Ct. App. | 1984
THOMAS
v.
THOMAS
Michigan Court of Appeals.
Norman M. Gaffney, Jr., P.C. (by Norman M. Gaffney, Jr.), for plaintiff.
Abood, Abood & Rheaume, P.C. (by Diane L. Bernick), for defendant.
Before: M.J. KELLY, P.J., and CYNAR and J.C. KINGSLEY,[*] JJ.
M.J. KELLY, P.J.
Defendant appeals as of right from a judgment of divorce entered on October 12, 1982, in the Ingham County Circuit Court. The main issue on appeal is whether plaintiff's law degree constitutes a marital asset.
After a review of the record and briefs and the hearing of oral argument, we are of the opinion that the trial court erred in its holding that the plaintiff's law school education and license to practice law were not marital assets. The court observed: "I will tell you what the value of a law school education is. It is zero." We reverse in accordance with this Court's opinion in Woodworth v Woodworth, 126 Mich. App. 258; 337 NW2d 332 (1983), lv pending ___ Mich ___ (1983), and find that the trial court improperly refused to consider the plaintiff's law degree and license to practice law as marital assets. The trial judge has since retired and we therefore remand this case to his successor or such other circuit judge (as is assigned *832 by rule or order) for evaluation of plaintiff's law degree as a marital asset.
The defendant also claims that the trial court's failure to award alimony constitutes an abuse of discretion. The parties were married for ten years and both parties contributed to the joint estate. Plaintiff is in excellent health while defendant suffers from back problems and severe skin allergies which are irritated by her employment. Plaintiff has a high income potential because of his license to practice law and his current position as a district court judge. Defendant is restricted by minimal education and limited skills to a low income potential. We are of the opinion that, under these circumstances, the trial court's failure to award defendant alimony constituted an abuse of discretion. Ozdagler v Ozdagler, 126 Mich. App. 468, 471; 337 NW2d 361 (1983). On remand the successor trial judge is instructed to reassess the alimony question.
Finally, defendant alleges that the trial court abused its discretion in ordering plaintiff to pay defendant only $1,510 for attorney fees. Under the circumstances, we believe the award of attorney fees proper. See Tigner v Tigner, 90 Mich. App. 787, 791; 282 NW2d 481 (1979). However, we believe that defendant should be awarded attorney fees on appeal in accordance with Zimmers v Zimmers, 346 Mich. 28, 37; 77 NW2d 267 (1956), and Chisnell v Chisnell, 99 Mich. App. 311, 316; 297 NW2d 909 (1980). We leave the assessment of the amount of the appellate attorney fees to the sound discretion of the circuit court on remand.
The judgment of divorce is affirmed; the property division and alimony awards are set aside and the matter is remanded for further proceedings in accordance with this opinion.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
