O'Brien v. O'Brien

Decision Date11 February 1985
Citation485 N.Y.S.2d 548,106 A.D.2d 223
PartiesMichael O'BRIEN, Appellant-Respondent, v. Loretta O'BRIEN, Respondent-Appellant.
CourtNew York Supreme Court — Appellate Division

Willard H. DaSilva, Garden City (Cynthia A. Hackel, Mineola, and Andrew Yankwitt on the brief), for appellant-respondent.

Albert J. Emanuelli, White Plains, for respondent-appellant.

Minna D. Edelman, Riverdale, for Legal Awareness For Women, amicus curiae.

Sally Weinraub, P.C., White Plains (Shirley Tolley, White Plains, of counsel), for Westchester Women's Bar Ass'n, amicus curiae.

Before THOMPSON, J.P., and O'CONNOR, WEINSTEIN, NIEHOFF and LAWRENCE, JJ.

O'CONNOR, Justice.

MARITAL PROPERTY

The threshold question, simply put, is whether a professional license acquired by one spouse during the marriage but attributable to the combined efforts, in varying degrees, of both spouses, constitutes marital property subject to equitable distribution. More specifically, the crucial issue is whether the plaintiff husband's medical license 1 constitutes marital property within the intent of part B of section 236 of the Domestic Relations Law.

The issue was first presented in the appellate courts of the State in 1982, in the Fourth Department case of Lesman v. Lesman, 88 A.D.2d 153, 452 N.Y.S.2d 935, app. dsmd. 57 N.Y.2d 956, and it was there concluded that an advanced educational degree or professional license earned during the marriage is not marital property. Although new to New York, the issue had been considered in many other jurisdictions, the vast majority of which held that neither an educational degree nor a license is marital property (Matter of Wisner v. Wisner, 129 Ariz. 333, 631 P.2d 115; Matter of Aufmuth, 89 Cal.App.3d 446, 152 Cal.Rptr. 668; Todd v. Todd, 272 Cal.App.2d 786, 78 Cal.Rptr. 131; Matter of Graham v. Graham, 194 Colo. 429, 574 P.2d 75; Matter of Goldstein, 97 Ill.App.3d 1023, 53 Ill.Dec. 397, 423 N.E.2d 1201; Matter of McManama, 272 Ind. 483, 399 N.E.2d 371; Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792; Leveck v. Leveck, 614 S.W.2d 710 DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527; Stern v. Stern, 66 N.J. 340, 331 A.2d 257; Muckleroy v. Muckleroy, 84 N.M. 14, 498 P.2d 1357; Nastrom v. Nastrom, 262 N.W.2d 487 Lira v. Lira, 68 Ohio App.2d 164, 428 N.E.2d 445; Hubbard v. Hubbard, 603 P.2d 747 Frausto v. Frausto, 611 S.W.2d 656 DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761). 2

The court in Lesman v. Lesman (supra, 88 A.D.2d p. 157, 452 N.Y.S.2d 935) flatly stated that "professional education, degree or license does not fall within the traditional concepts of property", and followed with an interesting quote from a Colorado report which, although hardly controlling, is relevant:

"It does not have an exchange value or any objective transferable value on an open market. It is personal to the holder. It terminates on death of the holder and is not inheritable. It cannot be assigned, sold, transferred, conveyed, or pledged. An advanced degree is a cumulative product of many years of previous education, combined with diligence and hard work. It may not be acquired by the mere expenditure of money. It is simply an intellectual achievement that may potentially assist in the future acquisition of property. In our view, it has none of the attributes of property in the usual sense of that term" (Matter of Graham v. Graham, 194 Colo. 429, 432, 574 P.2d 75, 77, supra ).

It would defy all law, logic and reason to declare, as we did in Conner v. Conner, 97 A.D.2d 88, 468 N.Y.S.2d 482, that a college degree is not marital property, and to now hold, as suggested by the minority, that a professional license is marital property. In my opinion neither a license nor a degree is property, either at common law or by statute.

Moreover, it seems to me that if it be sustained that a professional license is marital property--then we must declare, as a matter of law, that the future enhanced earning capacity of the holder thereof likewise is marital property! But clearly, enhanced earning capacity is not marital property. It is not vested; it has but, at best, a speculative and uncertain expectancy, dependent almost entirely upon the continued existence, good health, perseverance, diligence, and intellectual capacity, not to mention intellectual integrity, of the holder of the license.

In short, a license, even under its most liberal construction (for example, the 1936 Restatement of Property's adoption of the concept of all property as a combination of "legal relations between persons with respect to a thing" ), is hardly property. It may well be that the holder of a license has the potential, under favorable circumstances, to amass property in futuro, 3 but that is a far cry from designating the license itself (or the highly speculative and uncertain future earning capacity of its holder) as property.

Obviously, what is taking place here is that the wife seeks a reification of the husband's surgical license, so as to buttress her claim to a goodly percentage of his enhanced earnings potential which is determined, at least in part, by his work expectancy of some 30 years.

For two simple reasons this court cannot accede to the wife's request for a distribution of the husband's future earnings as though such earnings were marital property:

First, there is nothing in the equitable distribution law or its legislative history that suggests an intention by the Legislature, upon these facts, to vest a proprietary right in one spouse to the other spouse's very person. As we said in Conner, a license is a nonassignable personal privilege conferred upon an individual by operation of State law (see Education Law, §§ 224, 6506, 6512; Judiciary Law, §§ 90, 478, 484; see, also, Kocourek, The Hohfeld System of Fundamental Legal Concepts, 15 Ill.L.Rev. 24, 32). The privilege itself is not a resource to which a spouse may make a legally cognizable claim. The privilege is alienable by no one but the granting authority, and it can be conferred on a claimant such as the defendant wife in this case only if she complies with the requirements fixed by that authority, the State of New York.

Nevertheless, the resource actually sought to be controlled by the wife to the exclusion of all others, including the husband, is a percentage of his future labors that utilize that nonassignable privilege. In short, the privilege has no pecuniary value susceptible of ascertainment by the wife's expert apart from such labor. Labor, however, is merely the use by the husband of his own best asset, his chief capital--the property of his own person (see Tribe, American Constitutional Law, § 15-14, p. 948, citing Lynch v. Household Fin. Corp., 405 U.S. 538, 552, 92 S.Ct. 1113, 1122, 31 L.Ed.2d 424 1 Callman, Unfair Competition, Trademarks and Monopolies § 1.23, n. 11; 3 Pound, Jurisprudence, § 83, p. 33; § 84, pp. 69, 86; § 87, pp. 155-157; cf. Savigny, System of Modern Roman Law pp. 272-276).

Hence there is a real distinction between being obliged to pay maintenance or transfer marital property and being owned in part by a former spouse. Such a distinction rarely becomes important except in a case such as this, in which there is strong temptation to substitute for a careful evaluation of the statutory factors relevant to maintenance and equitable distribution of marital property a mechanical analysis that simplistically demarcates the husband's obligation to share the fruits of his future labors by a fictional partition of the res of his surgeon's license.

Second, despite Conner and Lesman (supra ) the minority and Special Term have determined that there is a legal distinction between a college degree and a license. 4 I fail to appreciate the difference. It is difficult for me to agree that a license granted after graduation from a trade school, be it for barbers or beauticians, plumbers or physicians, or whatever, constitutes marital property, but that an advanced graduate degree, i.e., an M.B.A. from Harvard University, does not.

What kind of property are we all talking about? If it be property at common law it conjures up all kinds of problems, constitutional and otherwise. Not alone a spouse, but every judgment creditor of a debtor would be in a position to attach and execute against such property. Such a proposition is filled with indescribable mischief and cannot seriously be entertained.

If, on the other hand, it be suggested that by operation of statute a license is marital property, the pressing question is immediately presented, where in the statute is such a proposition explicitly, or for that matter, implicitly set forth? To the contrary, a careful reading of part B of section 236 of the Domestic Relations Law fails to disclose any such legislative intent.

For example, section 236 (part B, subd. 1, par. c), under "says in substance that "the term 'marital property' shall mean all property acquired by either or both spouses during the marriage". But as already noted, a license is a nonassignable personal privilege and surely if there was any intent to include a degree or a license as property was this not the precise place to so indicate? If indeed, future earnings are henceforth to be regarded as present marital property, would not the bill drafters at this point have clearly indicated their thoughts on this novel, sui generis concept?

Section 236 (part B, subd. 5, par. d, cl. ), in substance, indicates that the court shall consider any equitable claim to marital property by the party not having title. Almost as a second thought the section goes on to say that in awarding maintenance, the court shall consider any efforts expenditures or contributions and services made by one spouse "to the career or the career potential of the other party". But if it was ever intended to give to a spouse (here the wife) a percentage of the present value of the other spouse's life income, predicated upon...

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