DeWitt v. DeWitt

DYKMAN, J.

(Concurring.) I agree with the majority opinion that a trial court may not award more than 100 percent of the property to the defendant, but I disagree with the majority’s conclusion that the plaintiff’s law degree may not be considered a marital asset under the predecessor to present secs. 767.255 and 767.-26, Stats.

The majority opinion does not comport with decisions of the Wisconsin Supreme Court which allow valuation of future interests in property for purposes of a property settlement and it unnecessarily limits the trial court’s options in providing an equitable settlement for parties in a divorce action.

In Leighton v. Leighton, 81 Wis.2d 620 , 261 N.W.2d 457 (1978), the Wisconsin court concluded under the same divorce law which applies to this case, that an unvested interest in a pension fund could be included in a property division. The majority in this case lists numerous contingencies which might reduce the actual earning power of the plaintiff. The existence of contingencies is not a basis for excluding an asset in a prop *64 erty division. As the court in Leighton, 81 Wis.2d at 634-35 , 261 N.W.2d at 464 , stated:

[I]n cases dealing- with other contingent interests, such as a remainder of interest in a testamentary trust, or an interest in a profit-sharing trust, we have held that the fact that the interest is contingent does not mean it may be ignored in property divisions in divorce actions. (Footnotes omitted.)

Likewise, the method of valuing a professional degree can be no more obscure than that of valuing unvested interests in pension plans. 1

The question to be asked when considering whether to value a future interest is the probability that the person will continue to enjoy what he or she now enjoys. Leighton, 81 Wis.2d at 635 . I believe it is probable that the plaintiff will continue to enjoy the benefits of his law degree.

*65 More importantly, by precluding a trial court from considering a law degree or any degree as an asset for purposes of a property settlement, in some circumstances persons who support their spouse’s educational efforts could not be compensated. The options available under the majority’s decision are either: (1) to consider the educational support as a factor in adjusting the 50/50 division of property; or, (2) to use the educational support as a basis for maintenance payments.

There are difficulties with either option. In order for a trial court to make such adjustments in the property division, there must be sufficient assets to adequately compensate the supporting spouse. For a court to use the educational support as a basis for maintenance payments the party must have established some need for the maintenance. 2

It is not difficult to find a situation in which neither of these prerequisites is met. It - is common to find couples with no property or children, where one spouse is gainfully employed while the other obtains an education. If the divorce is obtained upon receipt of the degree, there are no significant assets which the court can award the supporting spouse as compensation. The supporting spouse would have a difficult time establishing need for maintenance payments if he or she is employed and there are no children. Thus, the court’s inability to consider the degree as a marital asset would *66 result in a situation in which the income of one spouse is used for the benefit of the other spouse with no method of allowing compensation.

Such a limitation on the trial court’s discretion in providing an equitable solution is unwarranted.

I would reverse because a court cannot award more than 100 percent of a couple’s property and because the court’s method of valuing the plaintiff’s law degree was entirely speculative.

See Bloomer v. Bloomer, 84 Wis.2d 124 , 267 N.W.2d 235 (1978), for a description of how to determine present values of such interests. Bloomer , by reversing a trial court’s valuation of a pension under the rule set forth in Parsons v. Parsons, 68 Wis.2d 744 , 229 N.W.2d 629 (1975), allows a trial court to divide property the court expects a party to acquire after the date of his or her divorce:

If the value of Herbert’s interest in the fund would be $8,047.61 when distributed [emphasis in original] in twenty-three years, then the trial court would undoubtedly be right in discounting the $8,047.61 for twenty-three years at 5 percent. The error in this method is that the $8,04.7.61 will continue to accrue interest over the next twenty-three years. [Emphasis supplied.] Assuming a 5 percent rate of growth, the value of the fund will approximately triple over that period. If we were to take the approximately tripled figure, twenty-three years in the future, and then discount that [emphasis in original] figure at 5 percent, we would end up where we started, with a present value of approximately $8,047.61. Bloomer, 84 Wis.2d at 133 , 267 N.W.2d at 240 .

Valuing a professional degree is no more speculative than assuming that a person will remain alive and continue with his or her employment with a present employer until retirement.

The majority implies that it is not necessary to establish “need” before a court may award maintenance payments. However, the case law strongly indicates that such a need must exist. As the court stated in Anderson v. Anderson, 72 Wis.2d 631, 642-43 , 242 N.W.2d 166 , 171 (1976), “Both alimony and support payments are fixed on the basis of the needs of the wife and children and ability of the husband to pay. These needs are ordinarily established by a consideration of the wife’s assets and income, her special needs, the age and health of both the wife and children and their customary station in life.”