IN THE SUPREME COURT OF MISSISSIPPI

NO. 98-CA-00276-SCT

AUDRA MARIAN GUY

v.

ROBERT SIDNEY GUY, JR.

DATE OF JUDGMENT: 11/20/1997

TRIAL JUDGE: HON. WILLIAM L. GRIFFIN, JR.

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CHANCERY COURT

ATTORNEY FOR APPELLANT: MARTIN A. KILPATRICK

ATTORNEY FOR APPELLEE: WILLIAM R. STRIEBECK

NATURE OF THE CASE: CIVIL - DOMESTIC RELATIONS

DISPOSITION: REVERSED AND REMANDED - 4/22/1999

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/13/99

BEFORE PITTMAN, P.J., BANKS AND MILLS, JJ.

PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

¶1. Robert Sidney Guy, Jr. (hereinafter Rob) and Audra Marian Guy (hereinafter Audra) were married

May 14, 1994. They were separated on April 12, 1997. No children were born to the couple. The couple

was awarded a divorce on the grounds of irreconcilable differences on November 20, 1997.

¶2. In the final judgment of divorce, the chancellor attempted to distribute equitably the couple's marital

assets. In doing so, he valued Audra's nursing degree, which she had obtained during the marriage, at $35,

000. The Chancellor credited that $35,000 value amount to Audra's portion of the marital assets.

¶3. The chancellor assigned the value of $35,000 to Audra's nursing degree as a result of Rob testifying that

this was the amount he spent on Audra's expenses and support while she pursued and completed her

nursing degree during the couple's brief marriage.

¶4. Audra filed a Motion to Alter or Amend Judgment, or, alternatively, for Relief from Judgment which the

Chancellor denied on February 2, 1998. Thereafter, Audra timely perfected this appeal.

¶5. Audra raises the following assignments of error on this appeal:
I. THE CHANCELLOR ERRED IN INCLUDING AUDRA'S NURSING DEGREE AS A

"MARITAL ASSET."

II. THE COST OF AUDRA'S NURSING DEGREE CANNOT BE REIMBURSED TO

ROB AS LUMP-SUM ALIMONY.

III. THE TRIAL COURT ERRED IN THE MANNER OF VALUING THE NURSING

DEGREE.

DISCUSSION OF THE LAW

¶6. These issues will be addressed together. The novel question presented in this appeal is whether a

professional degree is marital property. This is a question of first impression before this Court. This is a

question of law which will be reviewed de novo by this Court. Mauney v. State ex rel. Moore, 707 So.2d

1093, 1095 (Miss., 1998); Snapp v. Harrison, 699 So.2d 567, 569 (Miss., 1997) (citing Mississippi

Farm Bureau Cas. Ins. Co. v. Curtis, 678 So.2d 983, 987 (Miss., 1996); Seymour v. Brunswick

Corp., 655 So. 2d 892, 895, Prod.Liab.Rep. (CCH) P 14, 228 (Miss., 1995)).

¶7. Although there is no Mississippi case directly on point, the seminal Mississippi case regarding equitable

division of marital property is Ferguson v. Ferguson, 639 So.2d 921, 928 (Miss., 1994), where we held,

[T]his Court suggests the Chancery courts consider the following guidelines, where applicable, when

attempting to effect an equitable division of marital property:

1. Substantial contribution to the accumulation of the property. Factors to be considered in

determining contribution are as follows:

. . . .

c. Contribution to education, training or other accomplishment bearing on the earning power of the

spouse to accumulating the assets.

. . . .

Id. While Ferguson certainly did not list a professional degree as marital property to be equitably divided,

it did list the contribution made by the supporting spouse to the attainment of that degree by the other

spouse to be at least considered when equitably dividing the marital assets. Id.

¶8. We also look to our sister states whose courts have specifically addressed this issue. As with most legal

issues, the jurisdictions are split. Nevertheless, there is a clear majority and minority position as to whether

professional degrees are to be considered marital property. Eighteen jurisdictions have held that a spouse's

degree was not a marital asset.(1) The minority approach, followed by some courts in three jurisdictions

(most notably New York) is that a professional degree is marital property.(2)

¶9. The reason that most states have determined that professional degrees are not marital property is best

articulated by the Colorado Supreme Court in In re Marriage of Graham, 574 P.2d 75 (Colo. 1978),

where that Court stated:

An educational degree, such as an M.B.A., is simply not encompassed even by the broad views of
the concept of 'property.' 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.

574 P.2d at 77.

¶10. We join the majority of states and hold that professional degrees are not marital property. In the

present case, Audra's nursing degree is not marital property. Her nursing license is not a chattel which can

be divided or assigned. Rob may not share in it. The nursing degree and license may only be issued to a

qualified holder. We do not intend "property" in the sense of "marital property" to include intellectual or

technical mental enhancement gained during the course of a marriage. However, the analysis does not end

here because

[T]here is . . . clear agreement that the contributing spouse should be entitled to some form of

compensation for the financial efforts and support provided to the student spouse in the expectation

that the marital unit would prosper in the future as a direct result of the couple's previous sacrifices.

In re Marriage of Weinstein, 128 Ill.App.3d 234, 470 N.E.2d 551, 557, 83 Ill.Dec. 425 (Ill.App. 1

Dist., 1984) (citations omitted).

¶11. We recognize the potential inequity of a situation such as the present one, where one spouse works

full-time to put the other spouse through school where they obtain a college degree. After obtaining this

degree at the expense and sacrifice of the supporting spouse, the supported spouse leaves the supporting

spouse with nothing more than the knowledge that they aided their now ex-spouse in increasing his/her

future earning capacity. This sentiment is echoed by the New Jersey Supreme Court in Mahoney v.

Mahoney, 453 A.2d 527 (N.J. 1982). There the New Jersey Supreme Court stated:

[E]very joint undertaking has its bounds of fairness. Where a partner to marriage takes the benefits of

his spouse's support in obtaining a professional degree or license with the understanding that future

benefits will accrue and inure to both of them, and the marriage is then terminated without the

supported spouse giving anything in return, an unfairness has occurred that calls for a remedy.

. . . .

Furthermore, it is realistic to recognize that . . . a supporting spouse has contributed more than mere

earnings to her husband with the mutual expectation that both of them - she has well as he - will realize

and enjoy material improvements in their marriage as a result of his increased earning capacity. Also,

the wife has presumably made personal sacrifices, resulting in a reduced or lowered standard of living.

Additionally, her husband, by pursuing preparations for a future career, has foregone gainful

employment and financial contributions to the marriage that would have been forthcoming had he been

employed. He thereby has further reduced the level of support his wife might otherwise have received,

as well as the standard of living both of them would have otherwise enjoyed. In effect, through her

contributions, the supporting spouse has consented to live at a lower material level while her husband
has prepared for another career. She has postponed, as it were, present consumption and a higher

standard of living, for the future prospect of greater support and material benefits. The supporting

spouse's sacrifices would have been rewarded had the marriage endured and mutual expectations of

both of them been fulfilled. The unredressed sacrifices - loss of support and reduction of the standard

of living - coupled with the unfairness attendant upon the defeat of the supporting spouse's shared

expectation of future advantages, further justify a remedial reward. In this sense, an award that is

referable to the spouse's monetary contribution to her partner's education significantly implicates basic

considerations of marital support and standard of living - factors that are clearly relevant in the

determination and award of conventional alimony.

Id. at 533-34.

¶12. The Supreme Court of Pennsylvania has similarly observed:

While we agree . . . that marriage is not a business enterprise in which strict accountings are to be had

for moneys spent by one spouse for the benefit of the other, it appears to us that this case does not

involve strict accountings, but gross accountings. Supporting spouses in these cases feel entitled to

reimbursement, we believe, not because they have sacrificed to support the other spouse, but because

they are, to use a strong word, 'jettisoned' as soon as the need for their sacrifice, albeit in part a legal

obligation, comes to an end. In retrospect, perhaps unintentionally, the supporting spouse in such a

case can be said to have been 'used.' At least this is the perception of the supporting spouse, and we

believe that this perception is not totally without foundation in all cases . . . [T]he supporting spouse in

a case such as this should be awarded equitable reimbursement to the extent that his or her

contribution to the education, training or increased earning capacity of the other spouse exceeds the

bare minimum legally obligated support . . . .

Bold v. Bold, 524 Pa. 487, 574 A.2d 552, 556 (Pa., 1990).

¶13. We return to the words of the Supreme Court of New Jersey on this issue,

Marriage should not be a free ticket to professional education and training without subsequent

obligations . . . One spouse ought not to receive a divorce complaint when the other receives a

diploma. Those spouses supported through professional school should recognize that they may be

called upon to reimburse the supporting spouses for the financial contributions they received in pursuit

of their professional training. And they cannot deny the basic fairness of this result.

Mahoney, 453 A.2d at 535 (emphasis added & footnotes omitted).

¶14. In the present case we adopt the majority approach in recognizing the need for equitable

reimbursement of the supporting spouse. Rob may be entitled to lump sum alimony to replace any

investment by him in the degree. As this Court has noted, ". . . the chancellor may divide marital assets, real

and personal, as well as award periodic and/or lump sum alimony, as equity demands." Ferguson, 639

So.2d at 929 (emphasis added.)

¶15. The next question is how should chancellors go about doing this? The Supreme Court of Appeals of

West Virginia allows reimbursement alimony. In Hoak v. Hoak, 179 W.Va. 509, 370 S.E.2d 473, 477-78

(W. Va., 1988), the Supreme Court of Appeals of West Virginia stated,
As the name indicates, reimbursement alimony is designed to repay or reimburse the supporting

spouse for his or her financial contributions to the professional education of the student spouse. Unlike

an award based on the value of a professional degree, reimbursement alimony is based on the actual

amount of contributions, and does not require a judge to guess about future earnings, inflation, the

relative values of the spouses' contributions, etc. . . . . . . .

We therefore conclude that the trial judge in a divorce proceeding may in an appropriate case award

reimbursement alimony to a working spouse who contributed financially to the professional education

of a student spouse, where the contribution was made with the expectation of achieving a higher

standard of living for the family unit, and the couple did not realize that expectation due to divorce.

¶16. We adopt a similar approach, allowing the supporting spouse to be reimbursed for putting the student

spouse through school where the supported spouse obtained a degree and then leaves the supporting

spouse. Audra's argument that the $35,000 consisted of housing, food, and clothing expenses in addition to

books and tuition is irrelevant. We recognize that it takes more than books and tuition money to attend

school and obtain a higher education. Housing, clothing, and food must also be paid for in order to attend a

university.

¶17. Here, the simple facts are that Rob worked while Audra studied. Within a month of Audra's receiving

her nursing degree, she left Rob who had paid the majority of the bills for the couple during the entire

marriage during which Audra was a student including many of her school fees and expenses. Audra's

degree is not marital property and on that point, the chancellor is reversed. However, it would be

inequitable for Rob to have paid for Audra's education only to have her leave the marriage. Therefore if

Rob can produce sufficient evidence that he did in fact pay for Audra's education, he is entitled to be

reimbursed. In Robinson v. Irwin, 546 So.2d 683, 686 (Miss., 1989), we dealt with a similar situation

and reversed for insufficient lump-sum alimony. We recognize the right a supporting spouse has to be

compensated or reimbursed for the contributions he/she has made in cases where one spouse supports the

other through school and is then divorced after the supported spouse earns a degree.

¶18. Rob's proof that he invested $35,000 in Audra's nursing education was insufficient. We require greater

proof than was introduced here -- Rob's estimate that he spent $35,000 in aiding Audra in obtaining her

nursing degree.

CONCLUSION

¶19. A professional degree obtained by a student spouse during a marriage is not marital property.

Nevertheless, we recognize that the supporting spouse has a right to be compensated or reimbursed, upon

proper proof, for his or her financial contributions to the professional education of the student spouse.

¶20. For these reasons, we reverse the judgment below in part to the extent that it divided marital property

including a $35,000 value to Audra's nursing degree, and we remand this case for (1) a determination, upon

appropriate proof, of the amount of lump-sum alimony, if any, which would adequately reimburse Rob for

his expenditures towards Audra's attaining her nursing degree and (2) a recalculation of the division of

marital property.

¶21. REVERSED AND REMANDED.

SULLIVAN, P.J., BANKS, SMITH AND MILLS, JJ., CONCUR. WALLER, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J. McRAE, J.,

CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION.

COBB, J., NOT PARTICIPATING.

WALLER, JUSTICE, DISSENTING:

¶22. Historically we have divided marital assets based on the composition of the estate at the time of

separation. We require chancellors to review the makeup of the marital estate and equitably divide the

parties' assets based on our decision in Ferguson v. Ferguson, 639 So. 2d 921 (Miss. 1994), and its

progeny.

¶23. Today's majority sets a dangerous precedent by allowing reimbursement alimony to be paid to one

spouse for contributions by that spouse to the costs of the other spouse's professional degree. Contributions

to the educational costs of a spouse should be considered only as part of a Ferguson equitable distribution

analysis. Today's decision in effect creates a separate category for contributions made by one spouse to the

other spouse's education. Today's decision also ignores the fact that both parties contributed to the

marriage. Just because Rob worked while Audra went to school does not mean Audra made less significant

contributions to the marriage. See Hemsley v. Hemsley, 639 So. 2d 909, 915 (Miss. 1994) ("We assume

for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic

or otherwise are of equal value.").

¶24. To be sure, Rob is entitled to consideration of his payments toward Audra's education in the context

of an equitable distribution of the couple's property. He is not, however, entitled to a dollar-for-dollar

reimbursement of those costs as alimony.

¶25. For these reasons, I respectfully dissent.

PRATHER, C.J., JOINS THIS OPINION.

McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶26. I concur with the majority solely as to results. In Ferguson, we promulgated guidelines for the

distribution of marital assets in which we stated that courts should consider the "contribution to the

education, training or other accomplishments bearing on the earning power of the spouse to accumulate the

assets." See Ferguson v. Ferguson, 639 So. 2d 921, 928 (Miss. 1994). We regarded education as a

marital asset, not an issue of alimony. Nonetheless, the majority feels that the nursing degree is an issue of

alimony. This despite language in Ferguson-part of which of the majority quotes-that clearly demonstrates

that marital assets and alimony are distinct legal entities: "'[a]limony and equitable distribution are distinct

concepts, . . .' Thus, the chancellor may divide marital assets, real and personal, as well as award periodic

and/or lump sum alimony, as equity demands." See id. at 929 (citation omitted). Unfortunately, in placing

the degree's value within the rubric of alimony, the majority eschews very recent precedent and ignores the

equity Ferguson discusses.

¶27. In Kilpatrick v. Kilpatrick, No. 97-CA-00550-SCT, 1999 WL 12799 (Miss. Jan. 14, 1999), we

took an attorney's large fee from one case and made it a marital asset rather than income. There the law
dictated we should have found the fee to be income allocated as alimony whereas here the law dictates we

should find the degree to be a marital asset subject to equitable distribution. Regardless, we should at least

be consistent in our holdings. Accordingly, I concur in part and dissent in part.

1. (Arizona (Pyeatte v. Pyeatte, 135 Ariz. 346, 661 P.2d 196 (Ariz.App. Div. 1, 1982); Wisner v.

Wisner, 129 Ariz. 333, 631 P.2d 115 (Ariz.App. Div. 1, 1981); California (In re Marriage of Sullivan,

134 Cal.App.3d 634, 184 Cal.Rptr. 796 (Cal.App. 4 Dist., 1982) (hearing granted); In re Marriage of

Aufmuth, 89 Cal.App.3d 446, 152 Cal.Rptr. 668 (Cal.App, 1 Dist., 1979), overruled on other grounds,

In re Marriage of Lucas, 27 Cal.3d 808, 614 P.2d 285, 166 Cal.Rptr. 853 (Cal., 1980); Todd v. Todd,

272 Cal.App.2d 786, 78 Cal.Rptr. 131 (Cal.App. 3 Dist., 1969); Colorado (In re Marriage of Graham,

194 Colo. 429, 574 P.2d 75 (Colo. 1978); In re Marriage of McVey, 641 P.2d 300 (Colo.App., 1981);

Connecticut (Zahler v. Zahler, Conn.Super.Ct. New Haven Dist. Aug. 5,1982), 8 Fam.L.Rptr. 2694);

Delaware (Wright v. Wright, 469 A.2d 803 (Del.Fam.Ct., 1983)); Florida (Hughes v. Hughes, 438

So.2d 146 (Fla.App. 3 Dist., 1983); Severs v. Severs, 426 So.2d 992 (Fla.App.5 Dist.,1983)); Indiana

(In re Marriage of McManama, 272 Ind. 483, 399 N.E.2d 371 (Ind., 1980); Iowa (In re Marriage of

Horstmann, 263 N.W.2d 885 (Iowa, 1978); Kentucky (Inman v. Inman, 648 S.W.2d 847 (Ky.,

1982); McGowan v. McGowan, 663 S.W.2d 219 (Ky.App., 1983); Leveck v. Leveck, 614 S.W.2d

710 (Ky.App., 1981); New Jersey (Mahoney v. Mahoney, 91 N.J. 488, 453 A.2d 527 (N.J., 1982);

New Hampshire (Ruben v. Ruben, 123 N.H. 358, 461 A.2d 733 (N.H., 1983); New Mexico

(Muckelroy v. Muckelroy, 84 N.M. 14, 498 P.2d 1357 (N.M., 1972); Oklahoma (Hubbard v.

Hubbard, 603 P.2d 747 (Okla., 1979); Texas (Frausto v. Frausto, 611 S.W.2d 656 (Tex.Civ.App.-

San Antonio, 1980); Wisconsin (In re Marriage of Lundberg, 107 Wis.2d 1, 318 N.W.2d 918 (Wis.,

1982); Wyoming (Grosskopf v. Grosskopf, 677 P.2d 814 (Wyo., 1984).) See also Massachusetts

(Drapek v. Drapek, 399 Mass. 240, 246, 503 N.E.2d 946, 950, 55 USLW 2523 (Mass., 1987));

Pennsylvania (Hodge v. Hodge, 513 Pa. 264, 268-69, 520 A.2d 15, 17, 55 USLW 2423 (Pa., 1986)).

2. See. O'Brien v. O'Brien, 66 N.Y.2d 576, 580-81, 489 N.E.2d 712, 713, 498 N.Y.S.2d 743, 744,

55 USLW 2348 (N.Y., 1985); Daniels v. Daniels, 165 Mich. App. 726, 731, 418 N.W.2d 924, 927

(Mich.App., 1988); Reen v. Reen, Mass.P. and Fam. Ct. Dec. 23, 1981).