Libby v. Libby

CALKINS, J.,

with whom CLIFFORD, J., joins, dissenting.

[¶ 9] I respectfully dissent. In my view the property division has resulted in a plain and unmistakable injustice. The end result is that Sandra receives a net value of marital property of $3000, and Patrick receives a net value of almost $35,000, which is more than ten times the value of the property distributed to Sandra. While this lopsided division may be justified in some cases, such justification is not present in this case.

[¶ 10] The Court rationalizes the division by stating that, “Sandra can now find a good paying job in a field with many opportunities for advancement.” This rationalization is not supported by the evidence presented at trial. Although a large disparity in the incomes of the parties might provide the basis for giving the bulk of marital property to one party, the evidence regarding Sandra and Patrick’s incomes does not support the division in this case. The trial court made no findings as to Sandra’s income. The court stated: “Sandra’s job prospects are far too speculative at this point for the Court to determine what she will wind up earning and what her benefits will be.” The evidence as to Sandra’s potential income was that if she obtains a position at Eastern Maine Medical Center at $16.60 per hour, she will earn between $31,075 and $34,528 per year.5 No contrary evidence was presented other than Sandra’s testimony that she could earn $14 per hour in Lincoln and $19 per hour in Bangor. Patrick earns $28,000 to $35,000 per year hauling sawdust. The difference in their annual incomes is not so great as to justify the large disparity in the property division.

[¶ 11] In all other respects, Patrick and Sandra are in basically equal circumstances. They are close to the same age; there was no evidence of ill health; they agreed to share responsibility for the children, including the primary physical residence.

[¶ 12] Because the immediate financial and other circumstances of the parties are roughly equal, the only rationale for the wide disparity in the property division is Sandra’s opportunity for advancement because of her professional degree. Neither this Court nor the trial court acknowledge that this rationale is similar to holding that a professional license is marital property. In Sweeney v. Sweeney, 534 A.2d 1290, 1291 (Me.1987) we held that a professional license is not property subject to distribution in a divorce. We concluded that distribution of a professional degree was, in essence, the distribution of earning capacity, and that the determination of future earning capacity was too speculative to distribute. Id. Furthermore, we noted that income from future earnings would be property acquired after marriage, not property acquired during marriage. Id. (citing Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (1982)).

[¶ 13] The Court’s holding today that allows the spouse, who does not have the professional degree, to receive marital property valued at ten times that of the property awarded to the spouse with the professional degree on the sole ground that the professional spouse will be able to advance in her profession is equivalent to distributing the value of a professional license. The same reasoning that we uti*777lized in Sweeney to hold that a professional license is not subject to division is applicable to this case. Although the trial court found that in the future Sandra will be able to advance in her profession, the trial court made no findings as to what that advancement would entail. There was no evidence presented as to what Sandra might be able to earn beyond the immediate future or what concrete economic benefits might come from her advancement. Thus, the rationale for awarding her a significantly smaller portion of the marital estate is based on pure speculation of Sandra’s future circumstances.6 Such speculation does not warrant a ten-fold disparity in the distribution of the marital property.

[¶ 14] I do not mean to suggest that an equal distribution is required. In my opinion, insofar as distribution is based primarily upon parties’ financial circumstances, as in this case, the equitable distribution must be grounded on “[t]he economic circumstances of each spouse at the time the division of property is to become effective ....” 19-A M.R.S.A. § 953(1)(C) (1998). I would vacate the property distribution and remand to the trial court for an equitable distribution based upon the parties’ circumstances “at the time” and not upon speculation of future circumstances. I would also vacate that portion of the judgment denying spousal support to either spouse after June 1, 1999, and allow the court to determine whether spousal support under the new statute is appropriate. See 19-A M.R.S.A. § 951-A(2)(C) (Supp. 2000).7

. Patrick’s witness, the human resources director from Eastern Maine Medical Center, testified that the starting salary for a staff nurse was $16.60 per hour for a 36 to 40 hour week.

. We recently found it inappropriate to speculate, for child and spousal support purposes, on the income that a party would receive from court-ordered payment and from a size-able asset. Dargie v. Dargie, 2001 ME 127, ¶¶ 24, 28, 778 A.2d 353 (2001). Speculation about future income is similarly inappropriate in the context of marital property division.

, This statute, applicable to orders issued after September 1, 2000, 19-A M.R.S.A. § 951-A(10), provides for "reimbursement support” when one spouse has made substantial contributions to the educational or occupational advancement of the other spouse and when the court determines that the parties’ circumstances "do not permit the court to fully address equitable considerations through its distributive order pursuant to section 953,” id. § 951-A(2)(C). Because in this case there was no evidence as to how future advancement translates into economic terms, any distribution of future advancement is speculative, meaning that the court cannot "fully address equitable considerations through its distributive order pursuant to section 953.”