supporting spouse entitled to lump-sum award in lieu of property to prevent unjust enrichment
How later courts described this case
- supporting spouse entitled to lump-sum award in lieu of property to prevent unjust enrichment
- medical license not property but wife entitled to compensation for her investment
- consideration based on theory of unjust enrichment
- good will of professional not divisible on divorce
Written by the judges who cited it.
Distinguished
Distinguished by Kittredge v. Kittredge, 66 O.B.A.J. 1124 (1995)
Hubbard is distinguishable from the present ease.
The opinion
LAVENDER, Chief Justice,
dissenting in part:
Section 1278 of 12 O.S.Supp.1978 authorizes an award of alimony which is not based on any need of the spouse in whose favor it is allowed but, in effect, is based on a finding that the recipient contributed to the enrichment of the other so that in equity an alimony award in lieu of a division (in kind) should be made. Section 1278 says that such an award . . may be allowed . . . out of real and personal property of the other as the court shall think reasonable, . . ”
The other kind of alimony is provided for in 12 O.S.Supp.1978, § 1289 and terminates (absent an agreement by the parties to the contrary) upon the remarriage of the recipient “unless the recipient can make a proper showing (of need).” It also terminates upon the recipient’s death.
If I were writing the majority opinion, I would affirm the $100,000.00 award of alimony allowed by the trial court under § 1278, supra. My conclusion is based on equitable considerations as distinguished from technical rules of the law of property. I would not require before a § 1278 alimony award could be entered that there be physical assets in being in which the spouse against whom the alimony is to be allowed has a present vested interest recognizable at law.
I agree with the dissent in the Colorado case of In re Marriage of Graham, Colo., 574 P.2d 75, 78, 79 (1978) that in situations such as exist in the case before us the function of a court of equity is to prevent extraordinary injustice. I would go along with the majority in the case of In re Marriage of Horstmann, Iowa, 263 N.W.2d 885 (1978) where that court agrees with the principles of property law that the wife, under circumstances similar to those here, acquires no interest in the husband’s license to practice his profession, but the potential for an increase in the husband’s future earning capacity to the extent it was made possible by the wife’s efforts does constitute an asset (of the husband) out of which an award of alimony in lieu of a division of property can be made.
I respectfully dissent to that portion of the majority opinion which reverses the *754 award of alimony by way of division of property. I concur in the other portions of the opinion.
I am authorized to state that IRWIN, V. C. J., and OPALA, J., concur in the views herein expressed.