dissenting.
For the reasons that follow, I have concluded that the trial court did not err in compensating wife for her contribution to husband’s enhanced earning capacity (e.e.c.). I would hold that the resulting property award under ORS 107.105(1)(f) was warranted in this case.
First, the majority omits certain important facts. Shortly after the parties began living together in 1973, both worked and husband also attended graduate school. In 1976, *410the parties married. Husband worked sporadically and continued his graduate-level studies until 1978, when he entered medical school. Between 1978 and 1982, husband was a full-time student and wife continued working full time.
By the end of 1982, the parties had been together for nine years. During that time, wife had worked continuously outside the home and husband had obtained a medical degree. According to wife’s unrefuted testimony, during those nine years she also tended to the bills and did all of the cooking, cleaning, laundry, shopping and home maintenance. Her contributions allowed husband to devote virtually all of his time and energy to taking graduate courses, applying for medical school, studying and obtaining his medical degree. During husband’s medical school years, wife typically left the house at 7:30 a.m., walked to work, worked until 5:30 or 6:30 p.m., and often did the grocery shopping on the walk home. When she arrived home, husband “was either asleep or studying.”
The end of husband’s educational endeavors marked a turning point in the parties’ relationship. Wife testified that husband
“said I didn’t need to work. I’d helped him and he would say he was incredibly grateful for me helping him get to where he was and he said it was my time. He said he would make more money than we possibly would ever need and I did not need to work unless it was my passion.”
During the next eight years, from 1982 to 1990, wife attended school, continued to take care of all the domestic chores, and underwent numerous attempts at in vitro fertilization in an unsuccessful effort to conceive and bear a child. The majority makes much of the fact that wife did not forgo any academic or career goals, but the undisputed testimony at trial was that wife had no such goals, because she planned on having a family. Husband told her that she could do whatever she wanted and could “trust that everything would be taken care of.”
Then, in 1990, husband informed wife that his girlfriend would be moving into the family residence. According to wife, husband said, “if you can’t live with [the girlfriend’s *411presence in their home], you will have to leave.” Wife left.1 She went on with her life, completed her bachelor’s degree, then applied to graduate school but was not accepted.
We now are called upon to make a just and equitable distribution of the parties’ property, including the value of wife’s contribution to husband obtaining a medical degree with a specialty in dermatology. To me, the case is clear, as it was to the trial court. Having had the benefit of listening to all of the testimony, the trial judge stated twice during the proceeding below: “There is no question but that this woman made a substantial contribution to this man’s medical degree.”2 That degree is the very basis for husband’s significant earning capacity. Accordingly, I would affirm the trial court’s decision to make a property award to wife for her contribution to husband’s enhanced earning capacity. Because of that conclusion, I would also address the numerous arguments that husband makes on appeal.
First, husband contends that application of the relevant portion of the statute3 is not mandatory, because the legislature used the word “as” in the following sentence: “The *412present value, and income resulting from, the future enhanced earning capacity of either party shall be considered as property.” ORS 107.105(1)(f) (emphasis supplied.) He argues that, because the legislature did not simply say that e.e.c. “shall be considered property,” courts have discretion to treat it as such. However, the statutory text makes plain that husband’s emphasis on and novel interpretation of the word “as” is a vain attempt to avoid the statute’s dispositive term, which is “shall.” The context confirms this. Elsewhere in ORS 107.105(1)(f), the statute provides that a “retirement plan or pension or an interest therein shall be considered as property.” In both instances, the legislature’s use of the word “as” alerts courts that an item that has not always been considered property now will be considered “as” such, and its use of the word “shall” means that courts do not have discretion in this matter: We must treat e.e.c. as property.
Because husband does not suggest that a court may consider enhanced earning capacity as anything other than property, i.e., that a court may treat it as income that is relevant to a support award instead of a property award, I understand the gravamen of his argument to be that courts are not required to value and distribute enhanced earning capacity in every case where a spouse has earned a professional degree or license during the marriage. With that narrow proposition I would agree. By its own terms, the statute limits its applicability to those cases in which a spouse both claims an interest in the enhanced earning capacity and carries the requisite burden of proof: “A spouse asserting an interest in the income resulting from an enhancement of earning capacity of the other spouse must demonstrate that the spouse made a material contribution to the enhancement.” ORS 107.105(1)(f). If a spouse asserts no such interest, or fails to demonstrate a material contribution, then there is no basis for awarding it.
*413At this juncture, it bears noting that in a letter to the parties, the trial court explained that the $15,000 annual award to wife was made
“on account of husband’s enhanced earnings, less wife’s enhanced earning capacity, and after considering spousal support award, property division, including goodwill, etc.” (Emphasis supplied.)
On the facts of this case, however, offsetting the parties’ relative contributions to one another’s enhanced earning capacity was not an appropriate method to employ, because husband failed to claim any interest in the enhanced earning capacity that wife will enjoy as a result of her sociology degree. At oral argument, counsel for husband suggested that husband’s claim to wife’s enhanced earning capacity was made below by virtue of the fact that his expert testified about it. However, the testimony of an expert is no substitute for an articulated claim by husband to a portion of wife’s enhanced earning capacity nor does it fulfill the statutory requirements that husband both “assert [] an interest in” wife’s enhanced earning capacity and demonstrate that his contribution thereto was material. ORS 107.105(1)(f). Accordingly, the trial court had no basis for awarding husband a portion of wife’s enhanced earning capacity either directly or indirectly by means of the offsetting calculation that it employed here. I would therefore remand for recalculation of the award amount.
Husband next argues that, because enhanced earning capacity awards are not subject to the presumption of equal contribution that applies to marital assets, Pugh and Pugh, 138 Or App 63, 69, 906 P2d 829 (1995), rev den 322 Or 644 (1996), enhanced earning capacity should be categorized as property that is subject to the dispositional authority of the court but is not a marital asset. That is incorrect as a matter of law. Because husband’s enhanced earning capacity was “acquired during the marriage, it is a marital asset.” Pierson and Pierson, 294 Or 117, 122-23, 653 P2d 1258 (1982); see also Stice and Stice, 308 Or 316, 325, 779 P2d 1020 (1989). Although enhanced earning capacity does differ significantly from other marital property, in that it does not carry with it the presumption of equal contribution, it is subject to division *414by the court if the party seeking the award can prove the statutory elements and if such an award would be “just and proper in all the circumstances.” ORS 107.105(1)(f).
Husband next contends that wife did not prove the existence of the statutory elements, that is, she did not meet her burden of establishing that her contribution to husband’s enhanced earning capacity was “material,” “substantial” and “prolonged.” Neither the text nor the context of the statute assists us in defining those terms. Therefore, I agree with the majority that it is appropriate in this case to turn to the substantial legislative history that underlies the enactment of this provision of the statute. In the tape recorded proceedings of the relevant house and senate committees, legislators and lobbyists discussed at length what would be required to establish that a spouse had made the requisite contribution to the enhanced earning capacity of another spouse. Although the tapes do not contain an explicit definition of the relevant statutory terms, the examples provided by Representative Del Parks, who sponsored House Bill 2946,4 Representative Kate Brown, who testified on behalf of the bill, and Representative Jim Edmunson, who was a member of the house subcommittee that considered the bill, shed light on the types of contributions that the legislators viewed as sufficient to give rise to an enhanced earning capacity award.
The majority and I differ in our interpretation of the legislative history. To my mind, the majority’s interpretation rests on a prolonged massaging of one statement made by Representative Parks on the floor of the House: Material contribution “means ‘this was a big-time contribution.’ ” 145 Or App at 398. But there was a considerable amount of legislative history behind the enactment of the enhanced earning capacity portion of ORS 107.105(11)(f), and I have found none that is contrary to my view that enhanced earning capacity was appropriately awarded to wife in this case.
For example, Representative Kate Brown, who testified in favor of the bill, stated that an enhanced earning capacity award “is simply another tool for the court to make *415an equitable distribution.” She opined that the bill would apply when, for example, the wife worked and the husband went to veterinary school; if, at the time of divorce, the wife’s work had given her a “relatively equal capacity for self-support,” which would affect her ability to obtain spousal support, HB 2946 still would allow her to be compensated, in the form of a property award, for her contribution to the husband’s enhanced earning capacity. Tape recording, House Committee on Judiciary, Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 91, Side A at 175. Representative Tom Brian, as Chair of the house subcommittee that considered HB 2946, stated that the bill was a response to the enhanced spouse who, at the time of divorce, is too early in his career to have reaped the large financial rewards of his new professional degree or license: “I think the whole purpose of the bill is to capture some fair portion of the future income[.]” Tape recording, House Committee on Judiciary, Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 91, Side B at 324 (emphasis supplied). In the present case, husband had been a practicing dermatologist for only three years before he initiated the parties’ separation.
A spokesperson for the Older Women’s League testified about that organization’s concern that the bill would not assist women who take care of children and the home but who “don’t contribute dollars” to the household or to their spouse’s education and training. Tape recording, House Committee on Judiciary, Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 92, Side A at 274 (Testimony of Helen Jane Williams on behalf of Older Women’s League). In response to those concerns, Representative Brown stated, “It’s my understanding that the intent of the bill is that a substantial and material contribution would include non-income work.” Id. at 355. Representative Parks agreed, saying, “This bill * * * doesn’t have anything to do with monetary contributions, it says a substantial contribution can be anything[.]” Id. at 376. Finally, Representative Edmunson said:
“By talking about ‘material contribution,’ your concern is that the courts will view that as cash money, and all the unpaid labor that women and men go through on behalf of *416their husband or wife will somehow be disregarded. And I think that’s a fair criticism because the courts sometimes don’t listen to these tapes. They read the law and say, ‘It’s clear enough to me and I’m not going to look at what Representative Brown or Edmunson said during the hearing.’ Would your concern be taken care of if we just kind of added words in there that said that it could be money — because that would certainly be a material contribution — or labor or help or things of that nature that are not actual cash contributions, but just that we make that real clear in here that that’s what we all agree to?” Id. at 404. (Emphasis supplied.)
The witnesses answered affirmatively.
In the work session that followed, Representative Edmunson moved to amend HB 2946 to state that the requisite contribution could be financial “or otherwise.” The motion passed unanimously. Tape recording, House Committee on Judiciary, Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 91, Side B at 145.5 At no point in the House proceedings did any legislator state or imply that the unenhanced spouse also would have to prove that he or she had forgone career or other opportunities by staying home.
When Representative Parks presented the bill to the Senate Committee on Judiciary, he described it as follows:
“This bill addresses a situation that is not common in most marriages, but it does occur often enough that injustice results to people getting a divorce: * * * [D]uring the course of a relatively long marriage relationship, one of the parties acquires a substantially increased earning capacity, usually through the acquisition of a professional degree, and that person, upon divorce, * * * leaves with what is by far the greatest asset in the marriage, without any recognition to the other spouse.” Tape recording, Senate Committee on Judiciary, June 9, 1993, Tape 187, Side A at 015-27.
That is precisely what occurred in this case.
*417Representative Parks continued:
“This bill says that the wife — we’re normally talking about the wife — the wife has to make a substantial contribution for a prolonged period of time to the acquisition of an enhanced earning capacity. Those are vague terms. But they’re no more vague than what the law says is ‘reasonable,’ what is a ‘material’ contribution, what is a ‘substantial’ part performance, what is the value of a life, what is the value of a scar, what is the value of an arm; they’re no different. Because in Oregon we try to match the remedy to the injury and sometimes we have to give judges flexibility. What I think this bill will really accomplish is that people parting from this kind of a marriage will be treated with dignity, they’ll be allowed to recover what their rightful contribution has been to the marriage, and in many cases it’ll be transformed from alimony into a property right.” Id. at 075-093 (emphasis supplied).
Again, the focus was on the contribution to the marriage, not on proof that the unenhanced spouse gave up his or her own career or academic goals.
In the present case, it is undisputed that husband’s future earning capacity was enhanced by the professional education that he acquired during the marriage. He is now in a position to earn -substantially more than he would have otherwise. As noted above, I would hold that wife contributed to husband’s enhanced earning capacity financially— through out-of-home work for the nine years between 1973 and 1982 — and “otherwise” — through in-the-home work for the 17 years between 1973 and 1990.1 would hold that both of those contributions were substantial and of prolonged duration. And finally, based on my de novo review of the record, I would find that such an award is especially appropriate here, where wife and husband both believed that wife had helped husband “get to where he was” as a result of those contributions.
Although not addressed by the majority, my conclusion that wife was entitled to an enhanced earning capacity award requires that I address husband’s contention that his expert’s method of valuing enhanced earning capacity was correct and that wife’s expert’s method was not. Wife submits *418that husband’s arguments regarding valuation are “academic” because the actual award that she received — $15,000 per year for as many years as husband works — represents less than half of the most conservative estimate of the present value of husband’s enhanced earning capacity if he works for 20 years.6 Wife’s position indicates some confusion over the separate concepts of valuation and distribution. The trial court must distribute the parties’ property, including the value of the enhanced earning capacity, in a manner that is “just and proper under all the circumstances,” ORS 107.105(1)(f). Furthermore, because there is no presumption of an equal, i.e., 50-50, contribution by the nonenhanced spouse, an award that is less or more than 50 percent is unsurprising. Here, the court determined that it was equitable to award wife a significant portion of husband’s e.e.c, but a portion that was, nevertheless, less than half the full value thereof. That distribution decision is altogether separate from and has no bearing on the preliminary inquiry of whether the trial court engaged in a proper valuation of the asset in question.
The parties, as well as a respected commentator on enhanced earning capacity,7 agree that, in broad terms, the value of a spouse’s enhancement is calculated by subtracting net pre-enhancement earning capacity from net post-enhancement earning capacity, both of which are computed on the basis of the individual’s work-life expectancy, discounted to present value.8 In this case, the primary disagreement between the parties’ experts was whether the post-enhancement figure should be based on actual or statistically *419average earnings. They also differed on the question of whether to factor in wife’s enhanced earning capacity. After providing some necessary background information, I will address both issues.
In a case such as this, where husband came into the relationship with a bachelor’s degree and left with a medical degree, logic dictates — and the parties agree — that the first task is to determine the statistically average annual net income figure for a male of husband’s age who holds a bachelor’s degree and a male of husband’s age who holds a medical degree with a specialty in dermatology. The next task is to determine husband’s work-life expectancy and then, using that expectancy figure and the two average annual net income figures (bachelor’s versus medical degree), to calculate the total (lifetime) income figure for each degree. Those income figures then are discounted back to their lump sum present values. The difference between the two lump sum values represents the “enhancement” in earning capacity for a person with a medical degree over a person with a bachelor’s degree.
Husband’s expert testified that, in order to provide a consistent comparison of pre- and post-enhancement earning capacities, one must compare the annual income of the “statistically average” holder of the pre-enhancement degree (in this case, a bachelor’s degree) against the “statistically average” holder of the post-enhancement degree (here, a medical degree with a specialty in dermatology). Wife’s expert likewise testified that, because we do not know what husband’s actual income would be, today, if he still held only a bachelor’s degree, the pre-enhancement figure must be based on the income data for average males of husband’s age holding a bachelor’s degree. There being no real alternative, I would agree that reliance upon statistical averages to calculate a party’s pre-enhancement income is the best method available for obtaining a “base line” by which to gauge the subsequent enhancement.
*420Wife’s expert calculated husband’s enhanced earning capacity by calculating husband’s actual, current earnings, multiplied by his work-life expectancy, and comparing that figure to what husband’s hypothetical earnings would have been with only a bachelor’s degree, multiplied by his work-life expectancy. After making adjustments for presumed future tax consequences and a presumed award of spousal support at $3,000 per month for 10 years, wife’s expert arrived at a present value of $1,193,220 for husband’s enhanced earning capacity.
Husband’s expert calculated enhanced earning capacity by comparing the work-life expectancy values of husband’s pre-enhancement degrees against the post-enhancement medical degree, and by making similar calculations for wife’s enhanced earnings from her bachelor’s degree. Husband’s expert derived an enhanced earning capacity range for both husband and wife, and netted those calculations against each other. As noted above, that approach was inappropriate because husband made no claim to wife’s enhanced earning capacity
As for the question of whether trial courts should use actual income or statistical averages to determine the post-enhancement income figure, the text of ORS 107.105(1)(f) does not articulate a particular method. However, the context suggests that the legislature anticipated the use of actual, not average, income figures: ORS 107.135(1)(e)(B) provides that an enhanced earning capacity award may be “[s]et aside, altered or modified * * * [w]hen the income of the person with the enhanced earning capacity decreases due to circumstances beyond the person’s control!.]”9 (Emphasis supplied.) The clear implication of that statute is that the enhanced spouse may seek a modification when his or her actual income decreases. It is inconceivable that an enhanced spouse would attempt to argue for a modification simply on the ground that the average income for those in his or her field had decreased, if the enhanced spouse’s actual income *421had not.10 Use of actual income data may not be simply a matter of determining current income and making projections based on anticipated inflation; the figure can be refined by making adjustments for factors such as “market trends and changing conditions” within a particular geographical area and professional specialty.11 Helen Boyer, Note, The Treatment of a Professional Degree at Dissolution, 60 Wash L Rev 431, 455 (1985).
Here, the trial court made the following assessment:
“I have been thinking about this, and somebody can go to medical school and end up like [husband] and make more money than the average for that profession, or somebody can go through medical school and like [Governor] John Kitzhaber, make substantially less money than the average for that particular profession. Or I suspect in my case, go to law school and become a judge and make substantially less than I had expected.
“And if there’s — there are two ways to look at it. One as the expert for [wife] did is you look at the actual earnings. Or you could, as [husband’s] expert did, just look at well, the degree is worth whatever the average is, and everything *422else are either genetic factors or personality factors or personal choice factors in deciding if you go into politics, become a judge, or whatever you want to do. And those really have nothing to do with enhanced earning capacity.
“In candor, I’m more attracted to the idea that enhanced earning capacity goes toward capacity, not actuality. Which would put people like Kitzhaber or someone in my position maybe a little more troubled where this is factored into the calculus.
“But on the other hand, in pushing that a little further, I think you would alleviate some of those problems if you look at how much time has gone by, how long did the marriage continue after the degree was earned, and how much benefit the spouse had as a result of that added earning capacity during the course of the marriage. And how much additional, if any, is it fair for that spouse to walk away from the marriage with.”
Because the text of ORS 107.105(1)(f) does not address this issue and I cannot conclusively say that the context of the statute requires a different approach from that taken by the trial court, I have looked to the legislative history for clarification and have found that it supports the conclusion that actual, not average, post-enhancement income figures, were anticipated by at least the sponsor of the bill. During a senate committee discussion of how courts will assign a number to a spouse’s enhanced earning capacity, Representative Parks said: “They’ll take the earning capacity as demonstrated.” Tape recording, Senate Committee on Judiciary, June 9, 1993, Tape 187, Side A at 171. That led to a discussion of award modifications and the question, asked by Senator Shoemaker, of whether a downward modification of an enhanced earning capacity award could be sought by the enhanced spouse purely on the basis of an increase in the unenhanced spouse’s earning capacity after the divorce. Representative Brown stated that the question demonstrated one of the important differences between spousal support and an enhanced earning capacity award: Although post-dissolution increases in an anenhanced spouse’s earning capacity could lead to a modification of a spousal support award, an enhanced earning capacity award would not be affected by such an increase. She went on to explain that, likewise, if the *423enhanced spouse further enhanced his or her career by becoming specialized after the divorce, the unenhanced spouse could not then obtain a larger enhanced earning capacity award through a modification proceeding. Id. at 212. Similarly, the legislative history reveals that the senate committee considering the bill specifically contemplated that modifications may be downward, pursuant to subsections (A) and (B) of ORS 107.135(1)(e), or upward, pursuant to subsection (C) of that statute, but that upward modifications could not be based on the enhanced spouse’s post-divorce efforts. Tape recording, Senate Committee on Judiciary, June 9, 1993, Tape 187, Side A at 360-438 (discussion among Representative Parks and Senators Webber, Rasmussen and Shoemaker).
I believe this court should also address the method of enhanced earning capacity distribution that was employed by the trial court in this case. The court appears to have evaded the statutory mandate to treat enhanced earning capacity “as property,” first by making the award payable only so long as husband works and second by making the award taxable to wife as income. Because it is a periodic payment terminable upon a specific event (husband’s decision to retire), and its tax consequences are favorable to husband, the enhanced earning capacity award here is more indicative of a spousal support award than a property award. On the other hand, because husband’s professional education is not transferable and will not survive his death or retirement, and because an enhanced earning capacity award is modifiable, by its nature such awards lack some of the qualities that are generally thought of as essential to a distribution of “property.”12
The problematic aspect of the award in this case is not that it is payable in annual installments13 but that the *424trial court failed to set a total award amount, opting instead to make the award terminate on an unspecified date, that is, husband’s retirement. Especially here, where the trial court also did not identify the work-life expectancy figure on which its enhanced earning capacity award was based — that is, did not identify how many years it anticipated husband would work before retiring — it is almost impossible for either party to contend on appeal that such an indeterminate award is too high or too low, it would be difficult for a party to argue for a modification, it would create an injustice for the unenhanced spouse if the enhanced spouse opted for an “early” retirement and it could create something akin to indentured servitude for the enhanced spouse if he decided to work well past normal retirement age. Therefore, I would also remand for the trial court to set a total amount for the enhanced earning capacity award and to state the work-life expectancy figure on which that award is based.14
As the majority opinion notes, husband also challenges the trial court’s decision to include goodwill in its valuation of husband’s dermatology practice. Husband contends that it is inappropriate to add a figure for goodwill to the valuation that is derived from the formula contained in the dermatology clinic partners’ buy-sell agreement and that it is not appropriate for the court to assign value to both goodwill and enhanced earning capacity in the same case, because goodwill and enhanced earning capacity are two different methods of valuing husband’s income stream. The statute is silent on this issue.
Members of the house subcommittee considered this problem and satisfied themselves that the two awards are not inherently duplicative. According to Representative Parks, the new enhanced earning capacity statute is directed at capturing a portion of the enhanced earnings that result *425from licensing or accreditation, i.e., the building of marketable skills, and is not directed at the earnings that result from the value of the spouse’s business. He explained to the subcommittee that enhanced earning capacity “wouldn’t have anything to do with” goodwill. Tape recording, Judiciary Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 92, Side A at 060.
The present value of professional goodwill is “the heavily discounted risk-laden opportunity to earn excess earnings,” which is distinctly different from the excess earnings themselves. 2 Valuation and Distribution, § 25.04(5)(c) at 25-54. Clearly, each must be awarded in a manner that takes into consideration, and does not include, the value of the other. Husband is correct that goodwill and enhanced earning capacity are similar, to the extent that both are able to generate future income and both acknowledge the existence of an intangible asset that is connected to the personal services, skills and knowledge of the particular individual after that individual either has built a successful business or acquired an education.
As relevant to ORS 107.105(1)(f), I have concluded that the difference between goodwill and enhanced earning capacity is one of chronology. That is, their significance depends upon how recently they were acquired before the marital dissolution. For example, in this case husband acquired his enhanced earning capacity through education and training that culminated in his becoming a practicing dermatologist in 1987, three years before the parties separated. At that point, he was prepared for a lucrative career but had not had time to develop professional goodwill. By the time the parties divorced in 1994, husband had acquired a certain amount of goodwill by putting to use his education and training. The trial court’s letter opinion and judgment shows that it separately considered, valued and distributed the two assets. I would find no error in that approach.15
In sum, I would affirm the trial court’s decision to make an enhanced earning capacity award to wife, but would *426remand for the court to recalculate husband’s enhanced earning capacity without an offset for wife’s enhanced earning capacity, to specify the amount of the enhanced earning capacity award and the work-life expectancy on which that award was based, and to modify, if necessary, the payment terms.
Accordingly, I respectfully dissent.
Deits, De Muniz, Armstrong, JJ., join in this dissenting opinion.The majority believes that it is improper to make any mention of the facts underlying the reason for the parties’ separation. However, those facts are relevant in the light of legislative history showing that one of the many concerns of the legislators who enacted the e.e.c. portion of ORS 107.105(1X0 was the phenomenon of new professionals — who the legislators acknowledged could be male or female but at this point in history are predominately male — dumping their first wives just after those wives have completed the process of putting their husbands through professional educations. See, e.g., Tape Recording, House Judiciary Committee, Civil Law Subcommittee, April 27, 1993, Tape 92, Side A (Testimony of Rep. Edmunson). For a humorous example of the circumstances that might have motivated the legislature, see Olivia Goldsmith, First Wives Club, (Poseidon Press 1992).
Even counsel for husband said, in his closing argument, “We don’t dispute that she made a contribution to his earning power” by working full time and handling every domestic detail during husband’s four years of medical school.
ORS 107.105(1X0 provides, in part:
“The present value of, and income resulting from, the future enhanced earning capacity of either party shall be considered as property. The presumption of equal contribution to the acquisition of marital property, however, shall not apply to enhanced earning capacity. The spouse asserting an interest in the income resulting from an enhancement of earning capacity of the other spouse must demonstrate that the spouse made a material contribution to the enhancement. Material contribution can be shown by, among other things, having contributed, financially or otherwise, to the education and training that resulted in the enhanced earning capacity. The contribution shall have been substantial and of a prolonged duration.”
*412My dissenting opinion should not be read to suggest that I believe this new statute is sound family law policy, or that a more effective legislative policy choice (e.g., simply changing the spousal support statutes) could not have been made to accomplish the broad social objectives that its sponsors attempted to address by this legislation.
HB 2946 was ultimately enacted as Oregon Laws 1993, chapter 719, section 3, and codified at ORS 107.105(1)(f).
As is often the case in legislative proceedings, in order to capture as much of the testimony as possible, two tape recorders were used to record the subcommittee meeting held on April 27, 1993. The recording began on Tape 91, Side A, which was followed by Tape 92, Side A, then Tape 91, Side B, and finally Tape 92, Side B.
A $15,000 annual payment for 20 years will total $300,000. Husband’s expert testified that husband’s enhanced earning capacity from his medical degree, minus wife’s enhanced earning capacity from her bachelor’s degree, would equal a net enhancement of $635,534 to husband.
Paul T. Clausen, “Enhanced Earnings Capacity” — The New Marital Asset, ch 9, Oregon State Bar Family & Juvenile Law Section, Spring Conference materials (May 1996). Clausen’s article was also published by the Family and Juvenile Law Section of the Oregon State Bar in Family and Juvenile Law Newsletter, volume 14, number 3 (June 1994), and in volume 54 of the Oregon State Bar Bulletin (June 1994), under the title “A New Marital Asset?”
See also 2 Valuation and Distribution of Marital Property, § 23.06(3), at 23-115 (1996) (“The value of a professional degree is the discounted present value of the difference between what its holder will earn with the professional education and what he [or she] would have earned without such education.”). Although I *419accept this “present value of future increased earnings” approach as the one that follows most closely the language of ORS 107.105(1)(f), I note that other valuation methods, especially reimbursement, opportunity cost and the labor theory ofvalue, have been utilized elsewhere. For a discussion of those methods, see Krauskopf, “Property Distribution Principles,” 3 Family Law and Practice, § 37.06(4) (1985).
An enhanced earning capacity award modification also may be obtained if the enhanced spouse shows that “a good faith career change” has “result[ed] in less income.” ORS 107.135(l)(e)(A). Also, either spouse may seek a modification [u]nder such other circumstances as the court deems just and proper.” ORS 107.135-(1)(e)(C).
When using an individual’s actual post-enhancement income, trial courts must take care not to count professional goodwill twice — i.e., once as a discrete, calculable asset and once by virtue of the fact that over time it becomes an aspect of post-enhancement income. I use the phrase “over time” because, upon entering a profession, an individual’s income does not reflect the goodwill that may develop over the years as a result of increasing name familiarity, return patients/clients, reputation as a competent practitioner, etc. Over the years, one’s income generally becomes at least partially reflective of those “goodwill” factors, which have been described as the value that a practice has “in excess of [the] value of [its] combined physical assets.” 2 Valuation and Distribution, § 23.05(1) at 23-91. Likewise, enhanced earning capacity will be more important to recover if the parties’ marital dissolution occurs early in the enhanced spouse’s new professional practice and less important after the nonenhanced spouse has been, in effect, “compensated” by many years of a high standard of living between the time that the nonenhanced spouse contributed to the enhanced spouse’s education and the time, years later, that their marriage dissolves. That decrease in importance is mirrored by the decrease in value that will be assigned to enhanced earning capacity as the enhanced spouse nears retirement; the value decreases because of the shorter work-life expectancy.
Here, for example, husband argued that as a result of developments in the managed care system, more patients are referred by HMOs, and medical insurance companies are limiting the number of referrals that primary care physicians are allowed to make to specialists such as husband.
The “property” qualities that the enhanced earning capacity award retains are that it is not terminable upon wife’s remarriage and will be unaffected by any future increase in her income. The relevant senate committee discussed the “hybrid” nature of enhanced earning capacity awards and concluded that, in some cases, the unenhanced spouse might be better off opting for a spousal support award instead of an enhanced earning capacity award, because the latter award would be dischargeable upon bankruptcy. Tape recording, Senate Committee on Judiciary, June 9, 1993, Tape 187, Side A at 245.
Members of the house subcommittee considered and accepted the possibility that enhanced earning capacity awards, like other property awards, might need to *424be “paid out over a period of time” and that judges need to retain discretion as to how payments should be made in individual cases. Tape recording, House Committee on Judiciary, Subcommittee on Civil Law and Judicial Administration, April 27, 1993, Tape 91, Side B at 116, 156.
If this court were to remand, the trial court could, of course, take into consideration the ensuing tax consequences when setting the amount of the award and fashioning husband’s payment plan.
I would reject husband’s suggestion that the clinic partners’ buy-sell agreement was dispositive of, or set an upper limit on, the value that the trial court in this dissolution proceeding could assign to the goodwill of husband’s practice.