broadening the amount of compensation allowed from that permissible under the statute in effect at time DeWitt, supra, was decided
How later courts described this case
- broadening the amount of compensation allowed from that permissible under the statute in effect at time DeWitt, supra, was decided
- maintenance should be awarded for the employment rehabilitation of the spouse who has been absent from the job market during the course of the marriage
- $25,000 lump sum maintenance award to compensate wife for her investment in husband’s degree affirmed
Written by the judges who cited it.
The opinion
WILLIAM G. CALLOW, J.
(concurring). I agree with the majority’s determination that a spouse is entitled to receive compensation for being the breadwinner and for those lost opportunities which result from sacrifices made while supporting the spouse who obtained an advanced education. The valuation of the supporting spouse’s contribution to the education, training, or increased earning power of the dependent spouse should be limited to that compensation necessary to make the supporting spouse whole by placing a value on the lost opportunities and actual support contributions during that period which the dependent spouse pursued the educational endeavor.
*16 I would specifically reject any compensable formula based upon future earning potential. Attempting to value the percentage of future earnings to which the supporting spouse is entitled is too speculative to be judicially recognizable. There is no guarantee that the spouse with the enhanced education will actually practice in the particular field or earn the average amounts the economists have calculated. Too many intangibles are associated with an enhanced education or degree to enable a court to prospectively value it in any award to a supporting spouse.
Although I agree with the majority and the trial court that compensation for an enhanced education may be in the form of maintenance or property division, I consider it the better legal reasoning to construe the educational degree as a marital asset, subject to division of estate. If the education is reflected in a maintenance award, it could terminate upon death of either spouse or remarriage of the receiving spouse. In such situations, the award would never be received.
The legislature, in enacting the 1979-80 statutes, specifically provided that the contribution of one spouse to the education and training leading to the increased earning power of the other spouse should be considered in awarding both property division and maintenance. 1 This is consistent with my conclusion that the value of the enhanced education may be reflected in both awards. The trial court may reimburse the supporting spouse for the actual financial sacrifices made in enabling the dependent spouse to obtain the education. The trial court can additionally recognize the increased earning power of the educationally enhanced or degree holding spouse in an award of maintenance to the supporting spouse. *17 If the property award is discharged in bankruptcy, appropriate adjustments may be made in the maintenance award.
As the majority has pointed out in the instant case, the trial court has not specified whether Judy’s compensation is in the form of property division or maintenance. (Supra at 6.) This is an area properly within the trial court’s discretion. I would, accordingly, remand this case to the trial court for the purpose of clarifying, in light of this opinion, whether Judy’s award is in the form of maintenance or property division. Unless this is done, further litigation may be necessary to determine whether the award remains payable in the event of death or remarriage.
Sec. 767.26(9) and sec. 767.256(6), Stats., contain the identical language that the court shall consider “[t]he contribution by one party to the education, training or increased earning power of the other.”