In Re Marriage of Graham

*434 MR. JUSTICE CARRIGAN

dissenting:

I respectfully dissent.

As a matter of economic reality the most valuable asset acquired by either party during this six-year marriage was the husband’s increased earning capacity. There is no dispute that this asset resulted from his having obtained Bachelor of Science and Master of Business Administration degrees while married. These degrees, in turn, resulted in large part from the wife’s employment which contributed about 70% of the couple’s total income. Her earnings not only provided her husband’s support but also were “invested” in his education in the sense that she assumed the role of breadwinner so that he would have the time and funds necessary to obtain his education.

The case presents the not-unfamiliar pattern of the wife who, willing to sacrifice for a more secure family financial future, works to educate her husband, only to be awarded a divorce decree shortly after he is awarded his degree. The issue here is whether traditional, narrow concepts of what constitutes “property” render the courts impotent to provide a remedy for an obvious injustice.

In cases such as this, equity demands that courts seek extraordinary remedies to prevent extraordinary injustice. If the parties had remained married long enough after the husband had completed his post-graduate education so that they could have accumulated substantial property, there would have been no problem. In that situation abundant precedent authorizes the trial court, in determining how much of the marital property to allocate to the wife, to take into account her contributions to her husband’s earning capacity. Greer v. Greer, 32 Colo. App. 196 , 510 P.2d 905 (1973) (wife supported husband through medical school); In re Marriage of Vanet, 544 S.W.2d 236 (Mo. App. 1976) (wife was breadwinner while husband was in law school).

A husband’s future income earning potential, sometimes as indicated by the goodwill value of a professional practice, may be considered in deciding property division or alimony matters, and the wife’s award may be increased on the ground that the husband probably will have substantial future earnings. Todd v. Todd, 272 Cal. App.2d 786 , 78 Cal. Rptr. 131 (1969) (goodwill of husband’s law practice); Golden v. Golden, 270 Cal. App.2d 401 , 75 Cal. Rptr. 735 (1969) (goodwill of husband’s medical practice); Mueller v. Mueller, 144 Cal. App.2d 245 , 301 P.2d 90 (1956) (goodwill of husband’s dental lab); In re Marriage of Goger, 27 Or. App. 729 , 557 P.2d 46 (1976) (potential earnings of husband’s dental practice); In re Marriage of Lukens, 16 Wash. App. 481 , 558 P.2d 279 (1976) (goodwill of husband’s medical practice indicated future earning capacity).

Similarly, the wife’s contributions to enhancing the husband’s financial status or earning capacity have been considered in awarding alimony *435 and maintenance. Kraus v. Kraus, 159 Colo. 331 , 411 P.2d 240 (1966); Shapiro v. Shapiro, 115 Colo. 505 , 176 P.2d 363 (1946). The majority opinion emphasizes that in this case no maintenance was requested. However, the Colorado statute would seem to preclude an award of maintenance here, for it restricts the court’s power to award maintenance to cases where the spouse seeking it is unable to support himself or herself. Section 14-10-114, C.R.S. 1973.

While the majority opinion focuses on whether the husband’s master’s degree is marital “property” subject to division, it is not the degree itself which constitutes the asset in question. Rather it is the increase in the husband’s earning power concomitant to that degree which is the asset conferred on him by his wife’s efforts. That increased earning capacity was the asset appraised in the economist’s expert opinion testimony as having a discounted present value of $82,000.

Unquestionably the law, in other contexts, recognizes future earning capacity as an asset whose wrongful deprivation is compensable. Thus one who tortiously destroys or impairs another’s future earning capacity must pay as damages the amount the injured party has lost in anticipated future earnings. Nemer v. Anderson, 151 Colo. 411 , 378 P.2d 841 (1963); Abram, Personal Injury Damages in Colorado, 35 Colo. L. Rev. 332, 338 (1963).

Where a husband is killed, his widow is entitled to recover for loss of his future support damages based in part on the present value of his anticipated future earnings, which may be computed by taking into account probable future increases in his earning capacity. See United States v. Sommers, 351 F.2d 354 (10th Cir. 1965); Good v. Chance, 39 Colo. App. 70 , 565 P.2d 217 (1977). See also Colo. J. I. (Civil) 10:3.

The day before the divorce the wife had a legally recognized interest in her husband’s earning capacity. Perhaps the wife might have a remedy in a separate action based on implied debt, quasi-contract, unjust enrichment, or some similar theory. See, e.g., Dass v. Epplen, 162 Colo. 60 , 424 P.2d 779 (1967). Nevertheless, the law favors settling all aspects of a dispute in a single action where that is possible. Therefore I would affirm the trial court’s award.

I am authorized to state that MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE GROVES join in this dissent.