Leveck v. Leveck, s. 80-CA-2060-M

• Decision Date: 10 April 1981
• Docket Number: Nos. 80-CA-2060-M,80-CA-2234-MR,s. 80-CA-2060-M
• Parties: Judith M. LEVECK, Appellant, v. Terrence W. LEVECK, Appellee. Terrence W. LEVECK, Cross-Appellant, v. Judith M. LEVECK, Cross-Appellee.
• Court: Kentucky Court of Appeals

Page 710

614 S.W.2d 710

Judith M. LEVECK, Appellant, v. Terrence W. LEVECK, Appellee.

Terrence W. LEVECK, Cross-Appellant, v. Judith M. LEVECK, Cross-Appellee.

Nos. 80-CA-2060-MR, 80-CA-2234-MR

Court of Appeals of Kentucky.

April 10, 1981.

Donald E. Skeeters, Radcliff, for appellant/cross-appellee.

John McCrea, Louisville, for appellee/cross-appellant.

Before HAYES, C. J., and LESTER and McDONALD, JJ.

HAYES, Chief Judge.

This is an appeal from those portions of the decree of dissolution of the marriage of Terrence W. Leveck and Judith M. Leveck that distributed the marital property, awarded support for the children, and provided maintenance to Judith. Terrence cross-appeals on the grounds that the trial court erred in finding that Judith was unable to work, in limiting the children's visitation in his home to one (1) month per year, and in awarding lump sum as well as periodic maintenance to Judith.

Judith and Terrence married in December, 1967, and separated in December, 1978. The final judgment concerning the property was entered on July 18, 1980. Two (2) children were born of the marriage: Christopher, born July 10, 1972 and Jonathan, born October 28, 1976.

At the time of their marriage, neither party owned any significant property. Judith was working as a psychiatric nurse at Fort Leaven Mental Health Center and Terrence was completing his undergraduate education at Johns Hopkins University in Baltimore, Maryland. Terrence was graduated in January, 1968 and was employed until he started medical school at the University of Colorado in September, 1968. Judith, a registered nurse, was apparently three (3) years away from a college degree. During the first three years of Terrence's medical education, Judith was employed as a nurse at the Fort Logan Medical Health Center, Denver, Colorado. She quit working outside the home in June, 1971, when Terrence began his final year of medical school and started receiving Second Lieutenant's pay from the Army Senior Medical Program.

It appears that Judith furnished most of the funds needed to support the couple from the start of their marriage in December 1967, until Terrence's completion of his third year of medical school in June, 1971. Judith testified that during the time she was working, she paid the couple's living expenses, Terrence's medical school tuition, and the majority of the costs for Terrence's books and lab fees. Terrence testified that tuition for his first year of medical school was $1,134.00 and $1,284.00 apiece for his second and third years. Judith's gross income was $7,008.00 in 1968; $5,786.53 in 1969; $7,456.52 in 1970; and $2,603.55 in 1971. The first year of medical school (1968-69) Terrence earned $1,560.00 and the second year (1969-70) $905.00. For the entire year of 1971, Terrence earned $3,393.00 about one-third of that amount was earned during the last half of his third year through employment at the Fitzsimmons Army Hospital and two-thirds was obtained from the Army Senior Medical Program during the first half of his fourth year of school.

In 1972, Terrence earned $10,150.00 including Army Senior Medical Program funds during the first half of 1972 and a salary as a medical intern during the last half of 1972. He did both his medical internship and residency in the Army. In April of 1979, Terrence was a major in the Army and a board-certified specialist in general surgery. In May of 1979, Terrence testified that he received a $12,000 bonus plus his monthly take-home pay of $1,602.00 (housing allowance already subtracted). Terrence's gross income in 1978 was $34,437.62;. $29,720.00 in 1977; $28,776.00 in 1976; and $18,541.00 in 1975.

On December 29, 1978, Judith filed a petition for dissolution of the marriage. Temporary orders were entered by the court on February 13, 1979 and June 26, 1979. The June 26th order provided Judith with $1,200.00 per month support and maintenance. On August 22, 1979, the Hardin Circuit Court entered an order which dissolved the marriage of the parties and reserved matters in dispute for subsequent resolution. Each party took proof, and the final judgment was entered on July 18, 1980. The final judgment gave Judith the permanent custody of Jonathan and the temporary custody of Christopher. There is nothing in the record to indicate which party received the permanent custody of Christopher. Judith appealed the judgment and Terrence cross-appealed.

Judith's main contention on appeal is that the trial court erred when it did not specifically find that Terrence's medical license was marital property subject to division. Judith, citing Inman v. Inman, Ky.App., 578 S.W.2d 266 (1979) argues that the principle has been established in Kentucky that a professional license and degree is marital property. This is an attempt to broaden the holding of Inman. In Inman, the only way by which equity could have been achieved was by the classification of the license as marital property. There was no marital property other than the license and Mrs. Inman was not eligible for maintenance. Mrs. Inman would have been left with nothing had the license not been considered marital property.

In the present case, Judith worked for three and one-half years, supporting her husband and paying his tuition. She then stopped working outside the home. For the next seven and one-half years, the family lived on Terrence's army salary. Judith and Terrence acquired a small marital estate which included no real estate. In the final judgment, Judith was awarded both a lump sum of $10,000 and periodic maintenance. The trial court stated that the lump sum award included compensation for her investment in Terrence's medical education. In this case, an equitable result was able to be reached without treatment of the license as marital property, because Judith was entitled to maintenance. The trial court was not clearly erroneous in failing to find the medical license as marital property.

Judith maintains, in any event, she was not treated equitably in that she did not receive enough to compensate her for her contribution to Terrence's education. In light of the facts here and considering the economic contributions made by each party, we cannot say that the trial court abused its discretion in the amount of maintenance awarded to Judith. The result here was not inequitable.

Judith next argues that the trial court erred in failing to award her one-half the cash surrender value of the $95,000.00 worth of life insurance policies. The trial court required Terrence to maintain $50,000.00 of insurance payable to the children until the younger child reaches eighteen. Terrence contends that the court's requirement of maintaining insurance payable to the children somehow changes the character of the insurance policies as property. We do not agree. The policies were acquired during the marriage and have a present cash value. That value should be included in the marital estate for distribution. KRS 403.190. The maintaining of the insurance for the children is in the nature of child support and has nothing to do with the valuation and distribution of the marital estate. See Graham v. Graham, Ky.App., 595 S.W.2d 720 (1980). Upon remand the trial court shall correct the judgment to award Judith...