Sorensen v. Sorensen

JACKSON, Judge

(concurring in part and dissenting in part):

I dissent from Part I of the majority opinion.

Why are my colleagues and others in the legal system trying to create “new property” in the context of marriage dissolution? Because of real and perceived injustices and inequities in property settlements in divorce decrees. As a result of their high income production, professionals are prime targets for the new, expansive definitions of property that include: (1) advanced university degrees; (2) licenses to practice; (8) equitable restitution; and (4) professional goodwill. Proponents of “new property” justify new definitions because they believe those definitions provide the divorce system with additional means to be fair.

STATUS OF THE “NEW PROPERTY” IN UTAH

In Petersen v. Petersen, 737 P.2d 237, 241 (Utah Ct.App.1987), this court held that “an advanced degree is or confers an intangible right which, because of its character, cannot properly be characterized as property subject to division between the spouses.” We also stated it is proper to consider advanced degrees or professional licenses when determining a spouse’s ability to provide support, because an advanced degree is ordinarily an indicator of potential future earnings.

But it is the discrepancy in their earning power which is the basis for alimony, not the discrepancy in their educations.... Whether a spouse’s ability to provide support is the result of an advanced degree or professional license is irrelevant to the analysis. The key is the spouse’s ability.

Id. at 243 (emphasis in original).

In Rayburn v. Rayburn, 738 P.2d 238, 240-41 (Utah Ct.App.1987), we reaffirmed our holding in Petersen, but acknowledged there will be situations involving advanced degrees and professional licenses where an award of non-terminable rehabilitative or reimbursement alimony would be appropriate. See Petersen, 737 P.2d at 242 n. 4. In my view, reimbursement alimony is a return on investment in one spouse made by the financially supporting spouse. In contrast, rehabilitative alimony relates to lost investment in one’s self, resulting in lost or lower future income stream.

The need for reimbursement is most pronounced in “threshold” divorces, where the parties split up before the benefits of one spouse’s enhanced earning potential are realized. Like Rayburn, the instant case does not involve a threshold divorce. Dr. Rayburn acquired his medical degree before the parties married. Mrs. Rayburn did not endure substantial financial sacrifices or defer her own education to assist his education. She shared the financial rewards of the degree for several years. His income production brought considerable real and personal property into the marriage that was equitably divided.

Similarly, Dr. Sorensen acquired his degree, license, and dental clientele and equipment six years before marriage. Mrs. Sorensen contributed nothing to assist him in those acquisitions; she made no sacrifice, financial or otherwise. She shared his financial rewards for eleven years and received considerable tangible property in the divorce decree, plus alimony and child support. If the facts had warranted it, she could have been awarded non-terminable rehabilitative or reimbursement alimony.

In another recent divorce case involving a professional spouse, Martinez v. Martinez, 754 P.2d 69 (Utah Ct.App.1988), the majority followed Petersen and Rayburn insofar as it held that a medical degree is not property subject to valuation and distribution in a divorce. However, stating that Mrs. Martinez’s situation required “more creative” analysis than the usual case, Martinez, 754 P.2d at 76, the majority then moved beyond rehabilitative or reimbursement alimony to create new property by requiring an award of “equitable restitution” in addition to traditional alimony and property division.¹ See id. at 78. In a footnote, the majority emphasized that equitable restitution would not be awarded where the marriage lasted for many years after receipt of the professional degree; in such a case, sufficient assets would be accumulated and an appropriate distribution to the requesting spouse would provide a share of the economic benefits earned as a result of the degree. Id. at 78 n. 10.

Equitable restitution, this new animal not to be confused with traditional alimony or property, was described by the Martinez majority as “nothing more than an equitable sharing of the rewards of both parties’ common efforts and expectations.” Id. at 78. As I stated in my dissent, the effect of that decision is to unnecessarily create a distinctly new and unprecedented form of marital property. Id. at 82 (Jackson, J., dissenting).

The instant case is the fourth attempt in Utah to create “new property” in the professional arena. My colleagues have cooperated by uncritically embracing a new definition equating “goodwill” with “reputation,” discussed below. I agree that we must strive for equity and fairness in divorce actions, but I do not agree with the means they have chosen. Under our statute, Utah Code Ann. § 30-3-5 (1988), equity can be achieved through non-terminable alimony awards consistent with Rayburn and Petersen. This method is preferable to the judicial selection of new definitions of property.

ORIGINS OF PROFESSIONAL GOODWILL

Like many legal doctrines, that of professional goodwill as a marital asset divisible at divorce had one of its earliest airings in the California appellate courts. In Mueller v. Mueller, 144 Cal.App.2d 245, 301 P.2d 90, 94-95 (1956), the Third District Court of Appeal quoted what it believed to be the “general rule” in 28 AmJur. 808 that goodwill could exist in a professional practice or business dependent on the personal skill and ability of a particular person, but did not adopt that rule. The authority relied on in Mueller, however, focused on an actual sale of a professional practice. In any case, the Mueller court disposed of the case by assuming no goodwill could attach to such a business and then holding that the dental laboratory business at issue did not depend solely on the divorcing husband’s personal skill. Six years later, the same court said — again in dicta — that the value of a professional practice was property to be considered at marriage dissolution; the appellant ex-wife had not even appealed the trial court’s failure to award her any of the value of the respondent’s law practice. Brawman v. Brawman, 199 Cal.App.2d 876, 19 Cal.Rptr. 106, 109 (1962). Finally, relying on Mueller and Brawman, the Second District Court of Appeal explicitly embraced the doctrine in Golden v. Golden, 270 Cal.App.2d 401, 75 Cal.Rptr. 735 (1969), and stated the following rule:

[I]n a divorce case, the good will of the husband’s professional practice as a sole practitioner should be taken into consideration in determining the award to the wife.... [I]n a matrimonial matter, the practice of a sole practitioner husband will continue, with the same intangible value as it had during the marriage. Under the principles of community property law, the wife, by virtue of her position of wife, made to that value the same contribution as does a wife to any of the husband’s earnings and accumulations during marriage.

Id. at 405, 75 Cal.Rptr. at 737-38. The California cases involving professional goodwill after Golden did not even argue about whether goodwill can exist in a professional practice. . Instead, they assumed both that such goodwill could and did in fact exist, and focused on how to put a price tag on it. E.g., In re Marriage of Fortier, 34 Cal.App.3d 384, 109 Cal.Rptr. 915 (1973); In re Marriage of Lopez, 38 Cal.App.3d 93, 113 Cal.Rptr. 58 (1974); In re Marriage of Foster, 42 Cal.App.3d 577, 117 Cal.Rptr. 49 (1974). As discussed more fully below, this shift in focus has two unfortunate results: (1) the use of a broad, new definition of “goodwill,” only in the professional practice context, that equates it with personal reputation; and (2) the assumption that goodwill exists in every professional practice, relieving the requesting party of the burden of proving that it exists.

Tracking the elevation of professional goodwill from dicta to law in California, one writer has summarized:

Thus in just 17 years ... California carried a passing quotation from a law encyclopedia that goodwill now could be sold as part of a professional practice, to a clear acceptance, in Fortier, that professional goodwill was an asset accountable as property upon a hypothetical sale at marriage dissolution.

Lurvey, Professional Goodwill on Marriage Dissolution: Is it Property or Another Name for Alimony?, 52 CaLState Bar J. 27, 82 (1977). The result, Lurvey claims, is a “confusion of rules and methods for valuation, compounded by inconsistencies in logic and application and conceptual problems over possible duplication of spousal support and denial of equal protection.” Id. at 85.

EXISTENCE OF PROFESSIONAL GOODWILL

Judges, like valuation formulas, are leapfrogging over the threshold question of whether goodwill exists at all in a particular professional business, moving directly to the issue of what the value of that goodwill is. The court in In re Marriage of Hall, 103 Wash.2d 236, 692 P.2d 175 (1984), takes a stab at existence first, valuation second, but ultimately caves in and comingles the two issues:

Two areas surrounding the [factors relevant to valuation of goodwill, set out in In re Marriage of Lopez, 38 Cal.App.3d 93, 113 Cal.Rptr. 58 (1974) and adopted in In re Marriage of Fleege, 91 Wash.2d 324, 588 P.2d 1136 (1979),] must be clarified: (1) the first step in evaluation [of goodwill] under the Fleege factors is the determination of the existence of goodwill and (2) several accounting or appraisal methods may be used by the trial court in conjunction with the Fleege factors.

The Lopez court warned that evaluation of goodwill must be done with considerable care and caution. In carrying out this warning the court instructed that the trial courts should first determine if goodwill exists in a particular practice. Not every professional business as a going concern necessarily has goodwill. The Washington goodwill cases to date have not recognized this preliminary inquiry and we do so today.

Hall, 692 P.2d at 179 (citations omitted). Unfortunately, the Hall court then states, “This preliminary inquiry takes place during the general evaluation process. The trial court must bear in mind that there may be zero goodwill.” Id. Thus, even after Hall, the existence of goodwill is going to be determined by a calculation or formula determining whether it has a value; if it has a value, then it exists.² “One or more [approved valuation] methods may be used in conjunction with the Fleege factors to achieve a just and fair evaluation of the existence and value of any professional’s goodwill.” Id. 692 P.2d at 180. The Fleege factors referred to in Hall, 692 P.2d at 179, which are also the factors set forth in Lopez, are the professional’s age, health, past demonstrated earning power, professional reputation in the community as to his judgments, skill, and knowledge³ and his comparative professional success. But these are the factors outlined in Fleege and Lopez as relevant to the valuation of professional goodwill, not its existence. See Fleege, 588 P.2d at 1138; Lopez, 38 Cal.App.3d at 109, 113 Cal.Rptr. at 68. Thus, after this bit of sleight of hand in Hall, Washington uses the same factors to determine both that professional goodwill exists and that it has some value. Then the amount of that value is determined with the aid of an expert who is to use one of the five approved formulas. Accordingly, goodwill exists when a professional has health, a financial track record, and reputation. Thus, every professional who does not work as a salaried employee⁴ automatically has goodwill because every professional has all or most of these factors.

My colleagues in this case adopt the California and Washington approach and make the same unfortunate mistake. Their position, boiled down, is that a non-salaried professional person’s reputation is “goodwill” and, therefore, property. Failing to discern the necessity of a preliminary factual finding, based on supportive evidence in the record, that such professional goodwill exists, the majority opinion jumps right into valuation of Dr. Sorensen’s dental practice.

In California, the professional goodwill doctrine found its roots in dicta. Here, my colleagues think they have found identical roots in dicta in Gardner v. Gardner, 748 P.2d 1076 (Utah 1988). In Gardner, however, Justice Stewart was concerned that the parties’ experts had failed to address the goodwill of an established business organization, the Ogden Clinic, not the personal reputation of Mr. Gardner:

The Ogden Clinic, of which Mr. Gardner is a member, is a well-entrenched institution, whose twenty-three members have banded together in a business organization. It is not likely to be highly susceptible to earnings interruptions because of the ill health of one of its members. The Ogden Clinic is not entirely valueless_ Mrs. Gardner’s accountants value the business much higher [than Mr. Gardner does]. Neither gave consideration to the good will inherent in the professional clinic.

Id. at 1080 (footnote omitted). The footnote to this text also clearly refers to goodwill as an asset of a business, not of a person. “The ability of a business to generate income from its continued patronage is commonly referred to as good will.” Id. at 1080 n. 1.

The twenty-three member Ogden Clinic is the perfect contrast to Dr. Sorensen’s one-man dental practice, which is highly susceptible to earnings interruptions from many causes. Moreover, when well, he can work only so many hours a day and that is the end of his production. His opportunities to increase earnings are negligible.

As the court in Gardner seems to recognize, traditional nonlegal definitions of/ goodwill focus on it as the asset of a business, not of an individual. The goodwill concept used by accountants focuses on its measurement through a deductive process, not on its nature. Parkman, The Treatment of Professional Goodwill in Divorce Proceedings, 18 Fam.L.Q. 213 (1984). Thus, their criteria for goodwill are aimed at something that can be measured, such as excess earning power or payments made in excess of an established value of a resource. Id. To economists, the value of an asset depends on the future profits it can produce. Thus, the economic concept of goodwill focuses on the fact that an established business can make greater profits than new businesses because of its internal and external relationships; once the revenue produced by these relationships is capitalized, it can be viewed as an asset of the business, i.e., goodwill. Id. at 214.

In contrast, the legal concept of goodwill focuses on the idea that it is an asset which generates excess earnings. Because the legal concept has not been fitted into the existing accounting and economic framework, however, experts have had a difficult time applying the concept. In particular, the legal concept does not clearly differentiate between excess returns to individuals and excess returns to businesses. This confusion is especially noticeable in the case of professional practices.

In both the accounting and economic literature, goodwill is an asset of a business based on earnings in excess of normal profits. It is based on the intangible, but generally marketable, existence in a business of established relations with employees, customers, and suppliers. The same analysis would not view goodwill as being reflected in an individual. If excess profits of a business are attributable to an individual, that individual should be able to capture that value in higher wages. It would be appropriate to view personal attributes as “reputation” rather than as “goodwill.” By using reputation and goodwill interchangeably, the courts have created a confused situation in the evaluation of professional businesses.

Id. at 215.⁵

In a professional practice, goodwill can exist in the business, but not in the individual practicing the profession. A large professional business organization can have substantial goodwill. The Ogden Clinic fits the example of such an organization given by Parkman. See id. at 216. It does not have any one professional’s name directly associated with it; patients come not because of any particular individual professional, but because of their own needs and the clinic’s past delivery of high quality service. If that clinic sold for a price greater than the value of its tangible assets, the value of that excess, goodwill, would not be based on the presence at the clinic of any particular employee or professional.

Dr. Sorensen’s solo dental practice fits Parkman’s example, at the other extreme, of the limited opportunities for goodwill in a small professional practice, even one that is smoothly operated. See id. His patients come because of high quality service. He has a few employees, but equally qualified people are readily available. Patients would not necessarily return to his office location just because they had gone to a doctor there before. A new doctor would not pay for his practice much in excess of the value of his tangible assets and accounts receivable.

By distorting the original definition of business goodwill to equate it with such subjective factors as personal reputation in the professional practice context, the majority’s decision, like the cases it relies on, fabricates the existence of goodwill as as asset belonging to every non-salaried professional, whether in a solo practice, partnership, or professional corporation. I believe an objective threshold standard for determining the existence of goodwill must be enunciated.

ANALYSIS OF VALUATION METHODS AND FORMULAS APPLIED TO “NEW” GOODWILL

The majority asserts that the valuation procedure employed by Dr. Austin, Mrs. Sorensen’s expert, is one commonly used by his brokerage firm and is also consistent with methodologies recognized and approved in other jurisdictions. But they are not sure about the method he employed: “Although not specifically stated by either party, Dr. Austin appeared to use in part a market value methodology to value Dr. Sorensen’s dental practice. A market value approach has been cited with approval in other jurisdictions, see, e.g., In re Marriage of Hall, 103 Wash.2d 236, 692 P.2d 175, 180 (1984)....” Footnote 25, supra. Actually, Dr. Austin used his own gross revenue capitalization formula and merely labeled his method a “market value” approach. Gross revenue formulas automatically attribute goodwill to every professional because every professional has revenue.

In Hall, the Washington Supreme Court approved five professional goodwill valuation methods, including three capitalization formulas based on capitalization of net profits, not of gross revenue. In this case, Austin did not use the market value method, described by the court in Hall as follows:

The fourth method, the market value approach, sets a value on professional goodwill by establishing what fair price would be obtained in the current open market if the practice were to be sold. This method necessitates that a professional practice has been recently sold, is in the process of being sold or is the subject of a recent offer to purchase.

Hall, 692 P.2d at 180 (emphasis added),⁶

Thus, although Hall approves only a market value approach based on a current sale of the particular practice at issue, Austin used a past sales approach that only involved six sales of other practices, sales generated by his appraisal firm at prices created by its methods. The number of sales (two each year for three years) is too few to establish any market and none were in the vicinity of Roy, Utah or Weber County, Utah. They are too remote in both time and place to be reliable indicators of the value of any goodwill in Dr. Sorensen’s practice.

Unlike the majority, I believe courts should not be hoodwinked into accepting the valuation testimony offered by one party or the other, just because one sounds more credible than the other. If both experts are out in left field, the court should ignore them or require counsel to provide the proper data and analysis.

FAILURE TO DETERMINE WHETHER THE PROFESSIONAL’S CAREER ASSET WAS ACQUIRED BEFORE MARRIAGE

Even if there was evidence in this case on which to base a finding that goodwill exists in Dr. Sorensen’s dental practice, and even if there was credible evidence to support the value of that goodwill, there is one remaining flaw in the property distribution in this case. The trial court never examined — and none of the evidence addresses — whether the intangible asset of professional goodwill was acquired before or after the marriage vows.

Here, the trial court did recognize a timing problem with the expert’s valuation methods. Mrs. Sorensen’s expert did not pay attention to the time when Dr. Soren-sen acquired his reputation or “goodwill.” The court found that “[t]he only reasonable way to value said practice is to proportion it based upon the years the parties have been married during practice.”⁷ There is no evidence to support that finding. To the contrary, there is evidence that virtually all, if not all, of the value of the practice, including goodwill or reputation, was Dr. Sorensen’s pre-marital asset. Dr. Soren-sen’s evidence showed that, when adjusted for inflation, net earnings from his professional services were essentially the same at the time of marriage as at the time of divorce. The number of his clients had decreased. Thus, there was no increase in the value of his goodwill or reputation during the marriage. Whatever it was and whatever its value, it was Dr. Sorensen’s pre-marital asset, not a marital asset.⁸

Since Dr. Sorensen owned his career asset, his practice, and its “goodwill” prior to marriage, that asset should be treated as his separate property, to be awarded to him at dissolution in the absence of exigent circumstances faced by the trial court in fashioning equitable awards of property, support, and alimony, circumstances not present here. See Preston v. Preston, 646 P.2d 705, 706 (Utah 1982); see also Morten-sen v. Mortensen, 760 P.2d 304, 310 (Utah 1988) (Zimmerman, J., concurring).

CONCLUSION

In summary, I dissent from my colleagues’ creation of yet another species of new property through their broad redefinition of goodwill in the professional practice context, and from their erroneous approval of valuation factors and an unacceptable valuation method as a substitute for evidence of the existence of goodwill, however defined. Traditional alimony awards, plus nonmodifiable rehabilitative or reimbursement alimony awards, where appropriate, offer the best methods for achieving equity and fairness in Utah.

Even if I agreed with the majority’s analysis and disposition of the professional goodwill issue, I would nonetheless vacate the trial court’s award of part of the value to Mrs. Sorensen because there is no evidence to justify not returning it to Dr. Sorensen as his pre-marital asset.

1 . The Utah Supreme Court has granted Dr. Martinez’s petition for a writ of certiorari to consider the issue of equitable restitution. Martinez v. Martinez, 765 P.2d 1277 (Utah 1988).

2 . This approach, which begs the preliminary question of existence, is similar to that adopted by the Arizona court in Mitchell v. Mitchell, 152 Ariz. 317, 732 P.2d 208, 214 (1987), despite recognition of the need for a two-step determination:

As a general rule, "the court should clearly state whether it finds the practice to have any goodwill, and if so, its value, and how it arrived at that value.” Poore v. Poore, 75 N.C.App. 414, 331 S.E.2d 266 (1985). However, because the trial court stated that it utilized the gross fee approach advocated by appellee’s own expert, and the valuation was reasonably supported in the record by expert testimony, we find no error.

3 . Fleege states that the value of professional goodwill can be determined based partially on the professional’s "reputation in the community for judgment, skill, and knowledge.” Fleege, 588 P.2d at 1138. But the case it cites as authority for the elements engendering goodwill, In re Estate of Giant, 57 Wash.2d 309, 356 P.2d 707, 709 (1960), involved Pacific Iron and Metal Company, a business partnership, and referred only to "reputation for honesty and fair dealing.”

4 . Significantly, the primary reason Dr. Sorensen would have the "new goodwill” is because he elected to work for himself as a non-salaried professional rather than work for someone else for a salary. For example, assume a lawyer in solo practice who has five winnable wrongful death cases on hand. When he wins or settles those cases, the "new goodwillers” attribute goodwill to him because he will have excess earnings above what the average salaried lawyer makes. However, if he were to take his cases to another lawyer or firm, turn them over, and agree to work on them for a high salary until successfully completed, he would not have any "new goodwill” as property to be divided upon divorce, although his high income is virtually the same.

The court in Hall reached this absurd result, professing to see a distinction with a difference between salaried and non-salaried professionals. Dr. Judith Hall, a forty-year-old professor at the University of Washington, had received a salary increase from 832,750 to 842,000 around the time of the divorce. She was "widely published and enjoy[ed] a reputation as one of the 10 top physicians in the nation in the field of pediatric genetics.... Numerous medical schools across the nation ha[d] offered her employment with salaries up to 860,000." Hall, 692 P.2d at 176. The Washington Supreme Court held, as a matter of law, that a salaried employee such as Judith Hall cannot have goodwill. Id. at 178. But see L. Weitzman, The Divorce Revolution 122 (1985) (suggesting the California courts and others have already laid the necessary foundation for finding "goodwill" in salaried employees too). The Hall court apparently reached this conclusion because "only the practicing professional has a business or practice to which the goodwill can attach.” Hall, 692 P.2d at 178. Was not Judith Hall a practicing professional? Did she not, like her physician husband who worked for a professional corporation, also have health, reputation for skill and knowledge, and comparative professional success?

5 . Professor Allen Parkman, an economist and lawyer who teaches at the University of New Mexico’s Anderson School of Management, attributes the confusion in the case law to the lack of any focus on a clear definition of goodwill, which the majority opinion in this case shares.

The courts can obviously define terms in a manner that differs from their meaning in accounting and economics. However, if they then turn to these fields for an evaluation, they have to realize the confusion that is going to be created. If the courts say that there is goodwill in a sole practice, when there is none from an accounting or economic perspective, a problem of evaluation is created. It is like saying that an apple is an orange and then, even in the face of protests from an agricultural expert, asking for an analysis of the apple’s citrus content.

Parkman, The Treatment of Professional Goodwill in Divorce Proceedings, 18 Fam.L.Q. 213, 216 (1984).

6 . Even this "past sales” method of valuing professional goodwill has been criticized as subject to manipulation and not necessarily accurate, see e.g., 2 Valuation and Distribution of Marital Property § 23.05[2](a) at 23-66 (J. McCahey ed. 1988), prompting some courts to insist on the use of accounting formulas that capitalize excess earnings. These, however, have their own faults, including the problem of estimating a consistent "normal” return on tangible assets by which to measure "excess" earnings and the broad leeway given to the appraiser to choose a capitalization rate. Id. § 29.05[3][c] at 29-44, 45.

It is important to note that there is a great deal of diverse opinion as to whether earnings from a professional practice should be capitalized at all and if so, what rate is applicable. Critics of the use of capitalization point out that a generally accepted accounting and appraisal principle is that earnings are to be capitalized only where it can be assumed they will continue in the future. In the context of a professional practice, therefore, a court employing the formula approach is, either directly or implicitly, placing a value on future earnings and results. Yet, courts are, often without adequate explanation, quick to point out that they are not so doing.

Id. § 29.05[3][c] at 29-46 (footnote omitted).

Often, the professional ends up paying for the new goodwill with future earnings.

[Another] difficulty with these accounting formulas [for valuing professional goodwill] is that the result may be inappropriately high since factors other than goodwill may contribute to the excess income. For instance, if a physician works 60 to 70 hours a week instead of the usual 40 to 50, the excess earnings generated by this additional effort may be attributed to goodwill.

Comment, Identifying, Valuing, and Dividing Professional Goodwill as Community Property at Dissolution of the Marital Community, 56 Tul.L. Rev. 313, 333-34 (1981) (footnote omitted).

7 . A question not yet brought before the courts is the issue of the existence of pre-mari-tal goodwill when the practitioner spouse hits married well after the commencement of his practice. This could become quite significant. For example, a professional who had been in practice for twenty or more years could marry and then dissolve the marriage a short time later. Presumably the value of the goodwill accrued as of the date of the marriage would be separate property and would form a sort of basis. Only the goodwill accrued during the marriage would be community property. Its value could be determined by calculating the difference between the value of goodwill as of the date of dissolution and the value as of the date of marriage. Since goodwill is not accrued at a constant rate, as are pension benefits, the application of a simple time-based percentage formula to the value on the date of dissolution would not suffice.

Comment, supra note 6, at 340 (footnote omitted) (emphasis added).

8 . Another method of analysis, recently set forth by Professor Parkman in a thought-provoking law review article, better demonstrates that Dr. Sorensen’s income-producing ability was his, not theirs. See Parkman, The Recognition of Human Capital as Property in Divorce Settlements, 40 Ark.L.Rev. 439, 440-49 (1987). Dr. Sorensen (or someone other than Mrs. Soren-sen) made all the essential investments in the skill and knowledge he has that permits him to generate income in excess of the income he could derive from his innate strength and intelligence. His investments in himself, which increased the expected future income stream that would flow to him, were completed at least six years prior to his marriage. Usually,

the greatest impediment to attaining access to a professional education is probably not the direct costs of the education, but the difficulty of obtaining admission. The ability to gain admission is the result of earlier human capital investments. After admission, the most substantial cost of graduate education is usually the income sacrificed by the student.

Id. at 444-45. The current value of this income stream, his human capital, is a personal asset. See id. at 440, 447. That asset has value precisely because it will produce a stream of future returns. Id. at 439-^0 & n. 4. Even in a closer case, where a professional married while still a medical student, Parkman advocates treatment of an investment in one’s self as non-marital property:

For a medical doctor, the major increase in his future anticipated income stream occurs when he enters medical school, because the probability is very high that he will finish. ... [T]he critical investments had already occurred when the student entered medical school....

Under normal circumstances, the investment in human capital prior to marriage will be so large and essential relative to the investment after marriage that an individual’s human capital should be treated as separate property.

Id. at 448.