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decided: December 29, 1986.


Appeal from Order of Superior Court of Pennsylvania, Middle District, at No. 417 Harrisburg 1982.


Thomas B. Rutter, Mary B. Stein, Philadelphia, for appellant.

Charles E. Friedman, Harrisburg, for appellee.

Nix, C.j., and Larsen, Flaherty McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott, J., did not participate in the consideration or decision of this case. Hutchinson, J., filed a concurring and dissenting opinion in which Papadakos, J., joined. Larsen, J., filed a dissenting opinion.

Author: Zappala

[ 513 Pa. Page 266]


We granted cross-petitions for allowance of appeal to determine whether or not a medical license is "marital property" under our Divorce Code*fn1 and whether the award of alimony was proper. The relevant facts are as follows:

The parties were married in 1967. At that time, Dr. Hodge was a student of medical technology at St. Luke's Hospital in Bethlehem, Pennsylvania while Mrs. Hodge was a clinical instructor there. Prior to the marriage, Dr. Hodge enlisted in the United States Army Medical Service Corps and was sent to Fort Hood, Texas, where he was stationed until 1970. While in Fort Hood, Texas, Mrs. Hodge served as a laboratory technologist at Darnell Army Hospital. After his discharge, Dr. Hodge became employed as a serologist with Ortho-Pharmaceutical in Raritan, New Jersey where he remained for approximately nine months. His earnings at that time were $6,938.00 a year.

In January, 1971, Dr. Hodge enrolled in the medical program at the medical school of the University of Guadalajara, Mexico. During his first year of medical school, both Mrs. Hodge and their daughter remained in Pennsylvania where Mrs. Hodge worked to support the family and to facilitate Dr. Hodge's education. Mrs. Hodge and their daughter joined Dr. Hodge in Mexico for the last three years of medical school.

The Hodge family returned to Pennsylvania in January, 1975, where Dr. Hodge undertook his required fifth year of medical training at Harrisburg Poly-clinic Hospital. After successful completion of this required residency program, Dr. Hodge took an internship at the same hospital. During 1975-1976, Dr. Hodge lived at the residents' quarters while Mrs. Hodge and their three children resided in a rented home in Schuylkill County.

Dr. Hodge entered a two-year residency program specializing in internal medicine in January 1977. Thereafter, he

[ 513 Pa. Page 267]

    received his license to practice medicine in February 1977. On August 27, 1977, Dr. Hodge informed his wife that he no longer wished to continue their marital relationship. Thereafter, Mrs. Hodge commenced an action in divorce in Schuylkill County on December 26, 1978. Action on this complaint remained dormant, resulting in Dr. Hodge filing a complaint under section 201(d) of the Divorce Code on March 19, 1981. After preliminary objections of Mrs. Hodge were dismissed, a divorce decree was entered October 9, 1981, with the court retaining jurisdiction over the issues of support, alimony and equitable distribution.

The trial court appointed a special master to take testimony and make recommendations with regard to alimony and the division of property. After taking testimony, the master rejected Mrs. Hodge's claim that Dr. Hodge's medical license was 'marital property' under the Divorce Code, and recommended $100 a week alimony for Mrs. Hodge until September 26, 1994. Mrs. Hodge filed exceptions to the master's determination that the medical license was not 'marital property', while Dr. Hodge excepted to the determination of alimony. After hearing arguments on the exceptions, the trial judge approved the recommendations of the special master and entered a final decree.

Both parties filed appeals to the Superior Court which affirmed. 337 Pa. Super. 151, 486 A.2d 951. (Del Sole and Montemuro, Wickersham Concurring and Dissenting). We thereafter granted allocatur and in Part I affirm the Superior Court by a majority while in Part II affirm by an equally divided Court.


Under the Divorce Code, the court shall equitably divide the "marital property" between the parties. 23 P.S. § 401(d). The Code defines "marital property" as "all property acquired by either party during the marriage" subject to certain enumerated exceptions. 23 P.S. § 401(e). Furthermore, subsection (f) states that "[a]ll property, whether real or personal, acquired by either party during the marriage

[ 513 Pa. Page 268]

    is presumed to be marital property." 23 P.S. § 401(f). As can be seen from reviewing these sections of the Divorce Code, implicit in any discussion of whether an item is "marital property" under the Divorce Code, is a preliminary determination of whether that item is "property". Therefore, we must first determine whether a professional license, such as a medical license, is in fact "property", before determining whether it is "marital property" under the Divorce Code.

Relying upon In re Marriage of Graham, 194 Colo. 429, 574 P.2d 75 (1978), the Superior Court concluded that ". . . increased earning capacity is neither real or personal property in any classic sense of the word." 337 Pa. Super. at 156, 486 A.2d at 953. In Graham, the Colorado Supreme Court held:

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.

194 Colo. at 432, 574 P.2d at 77. (See also, Stevens v. Stevens, 23 Ohio St.3d 115, 492 N.E.2d 131 (1986)). We are in accord with the Colorado Supreme Court's legal analysis rejecting the argument that an advanced degree is "property". Since a professional license does not have the attributes of property, it cannot be deemed "property" in the classical sense. Nor does the Divorce Code demonstrate any legislative intent to give "property" a different meaning than its traditional definition. Unless otherwise defined,

[ 513 Pa. Page 269]

    words must be interpreted according to common usage. 1 Pa.C.S. § 1903(a). Therefore, we hold that an advanced degree, such as a medical license, is not "property" under our Divorce Code.

Even if we were to conclude that a professional license is property, it is clear that the increased earning capacity attained as a result of a professional license does not come within the statutory purview of section 401(e). Specifically, section 401(e) is predicated upon the property being "acquired" during the marriage. In instances such as the one now before the Court, the real value being sought is not the diploma but the future earned income of the former spouse which will be attained as the result of the advanced degree. The property being sought is actually acquired subsequent to the parties' separation. Thus, the future income sought cannot be "marital property" because it has not yet been earned. If it has not been earned, it has not been acquired during the marriage. Furthermore, the contributions made by one spouse to another spouse's advanced degree plays only a small part in the overall achievement. There is no question that in cases such as the one now before this Court, one spouse very often struggles to support the other spouse and the family while the non-working spouse is completing his education and post-education training. However, we must not forget that others, including the student-spouse, have made sacrifices to aid him in achieving his advanced degree and increased earned income. Thus, it is inherently unfair to compensate one spouse, to the exclusion of all other contributing persons, for the achievements of the other spouse.

A majority of this Court, therefore, holds that a professional license is not "marital property" subject to equitable distribution under the Divorce Code. Since a professional license is not property and any future earnings are not acquired during the marriage, the lower courts were correct in excluding Dr. Hodge's future earnings attained as a result of his medical degree from equitable distribution under the Divorce Code.

[ 513 Pa. Page 270]

    the fact that one parent is a student and not contributing support for the children does not result in a future claim by the other spouse for the unpaid past support. Therefore, the purpose of alimony under our statute is rehabilitation not reimbursement. Pacella v. Pacella, 342 Pa. Super. 178, 492 A.2d 707 (1985). As Judge Wieand has astutely stated:

The duty of support is imposed by rule of law on both spouses. Compliance with this legal duty does not result in unjust enrichment to the other. Marriage is for better or worse. It is not entered with a conscious intent that at some future time there will be an accounting of and reimbursement for moneys contributed to the support of the family. To inject such a concept would, in my judgment, have far-reaching and unfortunate consequences. If I am correct in my view regarding the duty of spousal support, then it is difficult to perceive good reason for creating an exception which would reimburse a spouse for support contributed while the other is attending an institution of higher learning or otherwise obtaining advanced training.

Lehmicke v. Lehmicke, 339 Pa. Super. 559, 573-74, 489 A.2d 782, 790 (1985) (Wieand, J., Concurring and Dissenting). Accordingly, after a spouse has established a need for alimony, the court may then take into consideration those expenses incurred in excess of the traditional support obligation (i.e., tuition, books, fees, etc.), in determining an alimony award.

How then should the factors listed in section 501(b) be applied to section 501(a)? In applying section 501(b), the trial court must keep in mind the purpose of alimony, i.e., to provide support when there exists a lack of sufficient property and appropriate employment to provide for reasonable needs. Since section 501(b) sets forth factors to be considered in determining whether alimony is necessary and in determining the amount, duration and manner of payment, it is clear that certain factors are ...

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