Forristall v. Forristall
| Citation | 1992 OK CIV APP 64,831 P.2d 1017 |
| Decision Date | 26 May 1992 |
| Docket Number | No. 77045,No. 1,77045,1 |
| Parties | 1992 OK CIV APP 64 Kimberly FORRISTALL, Appellant/Counter-Appellee, v. Ronald Dale FORRISTALL, Appellee/Counter-Appellant. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appeal from the District Court of Cherokee County; William H. Bliss, Judge. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH INSTRUCTIONS.
D.D. Hayes, Bonds, Matthews, Bonds & Hayes, Muskogee, for appellant/counter-appellee.
Tim Baker, Baker & Baker, Tahlequah, for appellee/counter-appellant.
Appellant/Counter-Appellee (Wife) argues the trial court set support alimony too low and claims she was entitled to "restitutionary alimony", citing Hubbard v. Hubbard, 603 P.2d 747 (Okla.1979). Wife also argues the trial court should have included income earned by Appellee/Counter-Appellant (Husband) after the parties' separation but before trial and excluded Husband's student loans in calculating the net marital estate. In addition, Wife urges reconsideration of Hubbard insofar as that decision bars a property award based on the future earning capacity of one spouse arising from the acquisition of a professional license or graduate degree during the course of the marriage. In his counter appeal, Husband argues the trial court erred in ordering him to pay part of Wife's attorney fee.
The parties were married in August, 1980. At that point, Husband had completed three years of college and was admitted to medical school. Wife was in the work force. Husband completed his medical degree and residency in orthopedic surgery during the marriage. With the exception of two short periods, Wife worked throughout the marriage. Husband began his medical practice in July, 1989. The parties separated in June, 1990.
The trial court granted both parties a divorce on the ground of incompatibility. The trial court awarded Wife support alimony of $12,000 payable over twenty-four months and assets valued at $85,505. Husband was awarded assets the trial court valued at $234,509 but was awarded $149,004 in debts, leaving him net assets valued at $85,505. Custody of the parties' daughter and the amount of child support set by the trial court are not at issue in this appeal.
Our analysis begins with the settled rule that an action for divorce, support alimony and division of marital property is one of equitable cognizance and the trial court's judgment will not be disturbed on appeal unless found to be clearly contrary to the weight of the evidence and an abuse of discretion. Carpenter v. Carpenter, 657 P.2d 646 (Okla.1983). Applying that standard, we must review the record for any abuse of discretion and determine if the findings of the trial court are supported by the evidence.
Wife claims the property division is unfair because the trial court considered a Physician's Manpower Training Commission loan used to finance Husband's medical education in calculating the net marital estate. According to the evidence, this loan is "forgiven" if Husband practices for a set period of time in Cherokee County. Contrary to Wife's assertions, there is nothing illusory about the Manpower loan. She is a co-signer on that loan, and both she and Husband could be called upon to pay it should Husband not perform according to its provisions. The fact the debt may be repaid other than in cash does not make it any less a marital debt properly considered in calculating the marital estate.
Wife also claims the trial court should not have included Husband's other student loans in the marital estate. She characterizes the student loans as Husband's separate debts. This argument ignores the evidence Husband's medical education was a joint goal of the parties during the marriage and is inconsistent with Wife's view that she contributed to and should benefit from Husband's education. Husband also testified portions of these loans were used for the general support of the family during his studies. The trial court did not abuse its discretion by considering the Manpower loan and Husband's other student loans when dividing the marital property. This portion of the trial court order will not be disturbed.
Wife asks us to reconsider Hubbard and find she is entitled to a part of Husband's future earnings because his earning skills were a product of joint effort and sacrifice. She argues his medical degree is an asset of the marriage and its value, as reflected in future earnings, should be divided. We are not at liberty to reconsider this approach since it was addressed and rejected by the Oklahoma Supreme Court in Hubbard. Oklahoma does not recognize an educational degree as property subject to division in a marital dissolution proceeding. Silverstein v. Silverstein, 748 P.2d 1004 (Okla.App.1987).
Relying on Hubbard, Wife next argues the trial court erred in failing to award her "restitutionary alimony". Wife claims Husband will be unjustly enriched because she made sacrifices toward a goal of the family, Husband's education, but will not reap the benefit of her investment. In Hubbard, the Oklahoma Supreme Court recognized a spouse's right to property alimony as compensation for that spouse's investment in the other spouse obtaining a professional degree and license. When divorce occurs at the threshold of the professional's career, preventing the other spouse from enjoying any benefit from the investment, the Court concluded equity required an alimony award to prevent unjust enrichment to the professional spouse. Otherwise, the professional spouse would reap all of the benefits of an investment made by both parties.
Wife presented evidence, including tax returns, of the support she contributed during the four years Husband attended medical school, and she asked for a return on this sum. Husband claimed Wife should not receive restitutionary alimony because he contributed more to the family's support during his medical school education than she did. However, Husband calculated his contribution by adding his earned income to the portions of his student loans used for the family's support. He also gave himself credit towards the family's support equal to the fair market value of a house his father owned which the family occupied during this period. He and his father testified the rent charged was less than the house's fair market rental value. 1
Although Husband argues the student loans were his separate support of the family he claims those loans are marital debts included in the property division. As such,...
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...Henley, 428 P.2d 258 (Okl.1967). Additionally, ability to pay is not the sole criterion for an award of alimony. Forristall v. Forristall, 831 P.2d 1017, 1020 (Okl.App.1992). Support alimony must be based on several factors, including demonstrated need during the post-matrimonial economic r......
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